Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash. (ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sphere 3D Corp), Registration Rights Agreement (Sphere 3D Corp)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC reviews the Registration Statement), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to the earlier of be filed pursuant to Section 2(a)(ii) (i) five (5) Business Days after 120 days if the SEC shall have informed the Company that no review of reviews the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineStatement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tapestry Pharmaceuticals, Inc), Registration Rights Agreement (Tapestry Pharmaceuticals, Inc)
Effectiveness. (i) i. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xi) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of fifth (i) five (55th) Business Days Day after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Statement; or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions), then the Company will make pro rata payments (each payment, a “Registration Delay Payment”) to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”), as liquidated damages and not as a penalty, in an amount equal to (a) in the case of each Investor that is a Purchaser, 1.5% of the aggregate Purchase Price (as defined in the Subscription Agreements) paid by such Purchaser; (b) in the case of each Investor who is an affiliate of a Purchaser and acquired Registrable Securities from such Purchaser for no additional consideration, 1.5% of the aggregate Purchase Price (as defined in the Subscription Agreements) paid by the Purchaser who was the transferor or assignor (an “Assigning Purchaser”); provided, however, if (1) the Assigning Purchaser retains any Registrable Securities, the Registration Delay Payment payable to such Assigning Purchaser shall be governed by this proviso to clause (b) rather than clause (a), and such Registration Delay Payment shall be allocated pro rata between the Investor and the Assigning Purchaser based on the number of Registrable Securities held by the Investor and the Assigning Purchaser at the commencement of the applicable Blackout Period, and (2) the Registrable Securities held by the Assigning Purchaser were transferred or assigned to more than one affiliate for no additional consideration, such Registration Delay Payment shall be allocated pro rata among such affiliates based on the number of Registrable Securities held by the each such affiliate at the commencement of the applicable Blackout Period; and (c) in the case of an Investor that is not a Purchaser and not otherwise covered by the preceding clause (b), 1.5% of the aggregate purchase price paid by such Investor to acquire the Registrable Securities covered by the Registration Statement. Such payments Registration Delay Payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts Registration Delay Payments payable as liquidated damages pursuant to this paragraph Section shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Registration Delay Payments shall be made to each Investor in cash.
(ii) . For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five ninety (4590) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (Ai) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company Company; or (Bii) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, provided that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, ; (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay; and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Arch Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twentyforty-four eight (2448) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If Subject to Section 2(d), if (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five ten (510) Business Days after the SEC shall have informed informs the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or and (ii) ninety (90) days the 60th day after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review initial filing of the Registration Statement will be made (or that the 90th day if the SEC has no further comments on reviews such Registration Statement) (the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay if the Registration Statement is on Form S-1, for a period of twenty (as defined below20) or days following the inability of any Investor date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each InvestorInvestor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which . Interest shall accrue at the time is not, in the good faith opinion rate of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so 5% per annum on any such liquidated damages payments that such Registration Statement or 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 paid by the statements therein, Blackout Payment Date until such amount is paid in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablefull.
Appears in 2 contracts
Sources: Securities Purchase Agreement (MEI Pharma, Inc.), Registration Rights Agreement (MEI Pharma, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement Statement(s) declared effective as soon as practicablepracticable (including filing with the SEC a request for acceleration of its effectiveness in accordance with Rule 461 within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the staff of the SEC that a Registration Statement will not be reviewed, or not be subject to further review). The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the S-1 Registration Statement covering or the Registrable Securities S-3 Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review staff of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company (orally or in writing, whichever is earlier) that no review of the such Registration Statement will not be made or that reviewed by the staff of the SEC has no or not be subject to further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadlinereview, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to Section 2(c)(ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash. The parties agree that the liquidated damages provided for in this Section 2(c)(i) represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that may be incurred by the Investors if the S-1 Registration Statement is not declared effective as hereinabove provided or if the S-3 Registration Statement is not declared effective by the applicable S-3 Filing Deadline. For purposes of the obligations of the Company under this Agreement, except in the case of any Investors who elect in writing not to have its Registrable Securities included in the Registration Statement, no Registration Statement shall be considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Investors of such Registrable Securities as “Selling Stockholders” and includes such other information as is required to be disclosed with respect to such Investors to permit them to sell their Registrable Securities pursuant to such Registration Statement.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section or by delaying any post-effective amendment to the Form S-1 Registration Statement (if the Form S-3 Registration Statement has not yet become effective), if such disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any material non-public information giving rise to an of the facts or circumstances regarding)an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Purchase Agreement (Avalon Pharmaceuticals Inc), Registration Rights Agreement (Avalon Pharmaceuticals Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify covering the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies resale of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC as soon as practicable and prior to the earlier of (ix) five ten (510) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (iiy) ninety (90) days the 90th day after the Registration Statement is first filed with filed. The Company shall notify the SEC Investor by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (y48) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of hours, after (iA) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or is declared effective and (B) after the filing of any related Prospectus under Rule 424(b), at which time the Company shall also provide the Investor with a copy of such related Prospectus. After the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such the Company shall take all actions, including without limitation updating the Registration Statement for any reason (includingas necessary, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell so that the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor may be sold pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable without restriction except as liquidated damages provided pursuant to this paragraph shall be paid monthly within three subparagraph (3ii) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashbelow.
(ii) For not more than twenty forty-five (2045) consecutive days or for a total of not more than forty-five ninety (4590) days in any twelve (12) month periodperiod without the approval of the Investor, which approval shall not be unreasonably withheld, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, Company and thereby suspend its obligations under paragraphs (a) and (c) of this Section 2 (as well as the right of the Investor to use any Prospectus included in any Registration Statement contemplated by this Section) if the disclosure of which at the time such material non-public information is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each the Investor in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an the Investor) , shall the Company disclose to such the Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors Investor in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay, and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Magellan Petroleum Corp /De/), Registration Rights Agreement (Magellan Petroleum Corp /De/)
Effectiveness. (i) The Company shall use commercially its reasonable best efforts to have the Initial Registration Statement and any amendment declared effective as soon as practicableby the SEC at the earliest possible date but no later than the earlier of (a) the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review; provided, that if the deadline for effectiveness of the Initial Registration Statement falls after February 14, 2025, it shall be automatically extended until the second business day following the date on which the Company files its Definitive Proxy Statement or Annual Report on Form 10-K that includes the disclosures required by Part III of Form 10-K, which shall be filed no later than April 30, 2025 (the “Effectiveness Deadline”). The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hoursone Business Day, after any the Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors Investor with copies of any related Prospectus prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use reasonable best efforts to keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investors of all of the Registrable Securities is not declared effective covered thereby at all times until the earliest to occur of the following events: (i) the date on which the Investors shall have resold all the Registrable Securities covered thereby; (ii) the date on which the Registrable Securities may be resold by the SEC prior Investors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the earlier requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect; and (iiii) five (5) Business Days years after the SEC shall have informed the Company that no review date of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase this Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but The Initial Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in contain any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aligos Therapeutics, Inc.), Registration Rights Agreement (Aligos Therapeutics, Inc.)
Effectiveness. (i) The Company Corporation shall use commercially reasonable its best efforts to file each Registration Statement within 45 calendar days after the request by the Holders hereunder if the Registration Statement relates to a public offering of shares of Common Stock, and 60 calendar days for any other Registration Statement, and to have the each Registration Statement declared effective prior to the 60th calendar day following the date that such Registration Statement was initially filed with the SEC (the “Filing Date”) (or, in the event the SEC reviews and has written comments to the Registration Statement, the 90th calendar day following the Filing Date) (the “Effectiveness Deadline”); provided, however, that if the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as soon to such Registration Statement shall be the 3rd Business Day following the date on which the Corporation is so notified if such date precedes the dates otherwise required above, and the Corporation shall use its best efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of the following (the “Effectiveness Period”): (A) such time as practicableall of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (B) there otherwise ceases to be Registrable Securities, or (C) in the case of a Shelf Registration Statement, three years from the date of filing thereof; provided that if, at the expiration of such three-year period, any Registrable Securities remain outstanding, the Company shall use its best efforts to file on the date of expiration of such three-year period a new Shelf Registration Statement. The Company Corporation shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 48 hours, after any (X) the Corporation receives written comments to a Registration Statement from the SEC, (Y) the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, and (Z) a Registration Statement is declared effective. At such time as the Corporation notifies the Purchasers that a Registration Statement is declared effective and as provided in the immediately preceding sentence, the Corporation shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) 40 consecutive calendar days or for a total of not more than forty-five 75 calendar days (45which need not be consecutive days) days in any twelve (12) -month period, the Company Corporation may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the CompanyCorporation, by deferring the filing of any Registration Statement as otherwise required under this Section 2, or suspending the use of any Prospectus included in any registration contemplated by this Section, if such disclosure of which at the time is not, in the good faith opinion of the CompanyCorporation, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Corporation (an “Allowed Allowed’ Delay”); provided, that the Company Corporation shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Corporation disclose to such Investor Purchaser any material non-public information giving rise to of the facts or circumstances regarding) an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay, and (c) use commercially reasonable its best efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Square 1 Financial Inc), Registration Rights Agreement (Square 1 Financial Inc)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twentyforty-four eight (2448) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective effective, and shall simultaneously provide the Investors with copies access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If Subject to Section 2(d), if (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 120th day after the Additional Shares Filing Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form S-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then then, at the election of each Investor, the Company will make pro rata payments to each Investorelecting Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement Subscription Agreements by such Investor for the such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such For each Investor that elects to receive liquidated damages, such payments shall constitute the such Investors’ exclusive monetary remedy for such events, but events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than ten (310) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything to the contrary contained herein, the Company may may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus included that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in any the Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to has a bona fide business purpose for preserving as confidential, (AY) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly (a) notify each Investor provide prompt notice to holders whose Registrable Securities are included in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Better Choice Co Inc.), Registration Rights Agreement (Better Choice Co Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicablewithin one hundred twenty (120) days of the date hereof (one hundred eighty (180) days in the event the Commission shall provide any comments to the Registration Statement) (the “Effectiveness Deadline”). The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four two (242) hoursTrading Days, after any Registration Statement is declared effective and and, if requested, shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC Commission prior to the earlier of (i) five (5) Business Trading Days after the SEC Commission shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC Commission has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineEffectiveness Deadline date, or (B) after a Registration Statement has been declared effective by the SECCommission, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s Companys failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions), then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.00.5% of the aggregate Purchase Price paid amount invested by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities such Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three ten (310) Business Days days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall expire upon the declaration of effectiveness by the Commission of the Registration Statement (if the Blackout Period is covered by clause (A) of this Section 2(c)(i)) or the date on which sales pursuant to the Registration Statement may resume (if the Blackout Period is covered by clause (B) of this Section 2(c)(i)). Such payments shall be made to each Investor Purchaser in cashcash no later than ten (10) days after the end of each 30-day period. Notwithstanding anything else to the contrary contained herein, liquidated damages, if any, payable pursuant to this Section 2(c) shall cease to accrue after the date that is six (6) months after the Closing Date.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading, or (C) to file a post-effective amendment to such Registration Statement to comply with the undertakings required by Item 512(a) of Regulation S-K (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investora Purchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aeolus Pharmaceuticals, Inc.), Registration Rights Agreement (Aeolus Pharmaceuticals, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 120th day after the Additional Shares Filing DeadlineClosing Date (the 150th day if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot (subject to any Allowed Delay) be made continuously pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions (each such event, then a “Default”). In the event that a Default occurs then, in addition to any other rights the Investors may have hereunder or under applicable law, on the first day of the occurrence of the Default, and on each monthly anniversary of each such date (if the applicable Default shall not have been cured by such date) until the applicable Default is cured, the Company will make pro rata payments shall pay to each InvestorInvestors an amount in cash, as liquidated damages and not as a penaltypenalty (“Liquidated Damages”), equal to 1.0% of the aggregate Purchase Price paid by such Investor pursuant to the Purchase Agreement for any Registrable Securities held by such Investor on the date of the Default and each such monthly anniversary thereof. The parties agree that (1) notwithstanding anything to the contrary herein, no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the Effectiveness Period), and in no event shall the aggregate amount of Liquidated Damages payable to a Investor exceed, in an amount equal the aggregate, fifteen percent (15%) of the aggregate purchase price paid by such Investor pursuant to 2.0the Purchase Agreement and (2) in no event shall the Company be liable in any 30-day period for Liquidated Damages under this Agreement in excess of 1.0% of the aggregate Purchase Price paid by the Investor Investors pursuant to the Purchase Agreement. If the Company fails to pay any Liquidated Damages pursuant to this Section 2(b) in full within five (5) Business Days after the date payable, the Company will pay interest thereon at a rate of 1.5% per month (or such lesser maximum amount that is permitted to be paid by applicable Purchase Agreement for law) to the Registrable Securities for each 30Investor, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-day period or pro rata basis for any portion thereof following of a month prior to the date by which such Registration Statement should have been effective (cure of a Default, except in the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right case of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days first occurrence of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashDefault.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aldeyra Therapeutics, Inc.), Registration Rights Agreement (Aldeyra Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors and the Placement Agent by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously as soon as reasonably practicable provide the Investors and the Placement Agent with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA)(y) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Closing Date (one hundred twenty (120) days if such Registration Statement is first filed with reviewed by the SEC SEC) (the “Effectiveness Deadline”), or (yz) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of within ninety (i90) five days (5one hundred twenty (120) Business Days after the SEC shall have informed the Company that no review of the days if such Registration Statement will be made or that is reviewed by the SEC has no further comments on SEC) following the time such Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadlinewas required to be filed pursuant to Section 2(a)(ii), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). The parties agree that the Company will not be liable for any liquidated damages in respect of the Warrants or the Placement Agent Warrants. Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For Notwithstanding anything to contrary, for not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may delay, suspend the use of any Prospectus included in of, or withdraw any Registration Statement contemplated by this Section in the event that or qualification of Registrable Securities if the Company determines in good faith determines that any such suspension is necessary to (A) delay Registration Statement, or the use thereof, would materially and adversely affect any material corporate event or would otherwise require disclosure of material non-public nonpublic information concerning which the Company, the disclosure of which at the time is notCompany determines, in the good faith opinion of the Companyits reasonable judgment, is not in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that at such Registration Statement or 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 thereintime, or, in the case of Company’s discretion, if the Prospectus Company determines that an event described in light of the circumstances under which they were made, not misleading Section 3(h) has occurred (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors and the Placement Agent in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) Investor or the Placement Agent, shall the Company disclose to such Investor or the Placement Agent any material non-public information of the facts or circumstances regarding) the event giving rise to an Allowed Delay, provided that the Company shall not be required to disclose material nonpublic information to an Investor or the Placement Agent, (b) advise the Investors and the Placement Agent in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Purchase Agreement (Bakers Footwear Group Inc), Registration Rights Agreement (Bakers Footwear Group Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the any Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after (A) any Registration Statement is declared effective and (B) the filing of any related Prospectus under Rule 424(b), at which time the Company shall simultaneously also provide the Investors with copies of any such related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyProspectus. If (A)(xA)(w) a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares and any and all other securities issued or issuable with respect to or in exchange for such Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety the 90th day after the Proposal Date (90) days the 120th day after the Proposal Date if the Registration Statement is first filed with reviewed by the SEC SEC) or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (the earlier of (i) five (5) Business Days 120th day after the SEC shall have informed the Company that no review of such date if the Registration Statement will be made or that is reviewed by the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineSEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0(i) 1.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities included in the applicable Registration Statement that has not been declared effective (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Additional Shares) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”)") and (ii) 1.0% of the aggregate amount invested by such Investor for the Registrable Securities included in the applicable Registration Statement that is not available for resales (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Additional Shares) for each 30-day period or pro rata for any portion thereof that sales could not be made thereunder as provided in clause (B) above. Such payments shall constitute the Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zila Inc), Purchase Agreement (Zila Inc)
Effectiveness. (ia) The Company shall use commercially reasonable its best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail Email as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities Securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC Commission prior to the earlier of (i) five (5) Business Days after the SEC Commission shall have informed the Company that no review of the Registration Statement will be made or that the SEC Commission has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Statement; or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineClosing Date (the 120th day if the Commission reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SECCommission (the “Effectiveness Deadline”), sales cannot be made continuously pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding each such event shall constitute a “Default” for purposes hereof. In the event that a Default occurs then, in addition to any Allowed Delay other rights the Investors may have hereunder or under applicable law, commencing on the date the Default first occurred, and on each one month anniversary thereafter until the applicable Default is cured (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionseach, then a “Default Payment Date”), the Company will make pro rata payments shall pay to each InvestorInvestor an amount in cash, as liquidated damages and not as a penaltypenalty (“Liquidated Damages”), in an amount equal to 2.01.0% of the aggregate Purchase Price purchase price paid by the such Investor pursuant to the applicable Share Purchase Agreement for the any Registrable Securities for each 30then held by such Investor on the applicable Default Payment Date. The parties hereto agree that in no event shall the aggregate amount of Liquidated Damages payable to the Investors exceed, in the aggregate, twenty-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective five percent (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right 25%) of the aggregate purchase price paid by the Investors pursuant to seek injunctive reliefthe Share Purchase Agreement. The amounts payable as liquidated damages If the Company fails to pay any Liquidated Damages pursuant to this paragraph shall be paid monthly Section 2.5(a) in full within three five (35) Business Days of after the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodapplicable Default Payment Date, the Company may suspend will pay interest thereon at a rate of 1.5% per month (or such lesser maximum amount that is permitted to be paid by applicable law) to the use Investors, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. If paid between Default Payment Dates, Liquidated Damages shall be prorated on a days elapsed basis (measured from and after the last Default Payment Date up to and until the date the Default is cured) relative to the total number of any Prospectus included in any Registration Statement contemplated by this Section days in the event that period for which the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableLiquidated Damages are accruing.
Appears in 2 contracts
Sources: Registration Rights Agreement (Athenex, Inc.), Registration Rights Agreement (Athenex, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 75th day after the Additional Shares Filing Deadline, Deadline or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the Investor pursuant to the applicable Purchase Agreement such Purchaser for the Registrable Securities for each first 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective and 1.5% of the aggregate amount invested by such Purchaser for each 30-day period thereafter or pro rata for any portion thereof for which such Registration Statement should have been effective (the “Blackout Period”); provided, that the maximum payments to the Purchasers pursuant to this Section 2(c) shall not exceed 10.0% of the aggregate amount invested by such Purchaser. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Purchasers, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investora Purchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (True Drinks Holdings, Inc.), Registration Rights Agreement (True Drinks Holdings, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the each Registration Statement declared effective as soon as practicablepracticable after the filing thereof. The Company shall respond promptly to any and all comments made by the staff of the SEC on each Registration Statement, and shall submit to the SEC, within two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) Business Days after the submission of such requests. The Company shall notify the Investors Purchasers that purchased the Registrable Securities being registered by such Registration Statement by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any such Registration Statement is declared effective and shall simultaneously provide the Investors such Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If .
(A)(xii) a If, with respect to any Registration Statement covering the First Closing Registrable Securities: (A) such Registration Statement covering the First Closing Registrable Securities is not filed with the SEC on or prior to the First Closing Filing Deadline (if the Company files a Registration Statement without affording PDL BioPharma, Inc. the opportunity to review and comment on the same as required by Section 3(c) herein, the Company shall be deemed to have not satisfied this clause (A)), (B) the Company fails to file with the SEC a request for acceleration of the effectiveness of such Registration Statement in accordance with Rule 461 promulgated by the SEC pursuant to the Securities Act, within two (2) Business Days after the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be “reviewed” or will not be subject to further review, (C) prior to the effective date of such Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the SEC that such amendment is required in order for such Registration Statement to be declared effective, (D) such Registration Statement covering the First Closing Registrable Securities is not declared effective by the SEC prior to the earlier 75th calendar day following the First Closing Date (or, in the event of a “review” by the SEC, the 120th calendar day following the First Closing Date), (iE) five after the effective date of such Registration Statement, the Registration Statement ceases for any reason to remain continuously effective as to all First Closing Registrable Securities included in such Registration Statement during the applicable Effectiveness Period, or PDL BioPharma, Inc. are otherwise not permitted to utilize the Prospectus therein during the applicable Effectiveness Period to resell such First Closing Registrable Securities, for more than thirty (530) consecutive trading days or more than an aggregate of sixty (60) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as a “First Closing Event”, and for purposes of clauses (A) and (D), the date on which such First Closing Event occurs, and for purpose of clause (B) the date on which such two (2) Business Day period is exceeded, and for purpose of clause (C) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (E) the date on which such thirty (30) trading day or sixty (60) calendar day period, as applicable, is exceeded being referred to as a “First Closing Event Date”), then, in addition to any other rights that PDL BioPharma, Inc. may have hereunder or under applicable law, on each such First Closing Event Date and on each monthly anniversary of each such First Closing Event Date (if the applicable First Closing Event shall not have been cured by such date) until the applicable First Closing Event is cured, the Company shall pay to PDL BioPharma, Inc. an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate purchase price paid by PDL BioPharma, Inc. for the First Closing Registrable Securities issued in the First Closing (pro rated for partial months). Notwithstanding anything to the contrary herein or in the Purchase Agreement, in no event shall the aggregate amount of such partial liquidated damages (excluding interest) payable to PDL BioPharma, Inc. pursuant to this Section exceed, in the aggregate, 8.0% of the aggregate purchase price paid by PDL BioPharma, Inc. for the First Closing Registrable Securities issued in the First Closing. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within three (3) Business Days after the SEC shall have informed date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that no review is permitted to be paid by applicable law) to PDL BioPharma, Inc., accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of a First Closing Event.
(iii) If, with respect to any Registration Statement will be made or that covering the SEC has no further comments on the Second Closing Registrable Securities: (A) such Registration Statement or (ii) ninety (90) days after covering the Registration Statement Second Closing Registrable Securities is first not filed with the SEC on or prior to the Second Closing Filing Deadline (y) if the Company files a Registration Statement without affording the Purchasers the opportunity to review and comment on the same as required by Section 3(c) herein, the Company shall be deemed to have not satisfied this clause (A)), (B) the Company fails to file with the SEC a request for acceleration of the effectiveness of such Registration Statement in accordance with Rule 461 promulgated by the SEC pursuant to the Securities Act, within two (2) Business Days after the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be “reviewed” or will not be subject to further review, (C) prior to the effective date of such Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the SEC that such amendment is required in order for such Registration Statement to be declared effective, (D) such Registration Statement covering Additional Shares the Second Closing Registrable Securities is not declared effective by the SEC prior to the earlier 150th calendar day following the Second Closing Date (or, in the event of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective “review” by the SEC, sales cannot be made pursuant the 240th calendar day following the First Closing Date), (E) after the effective date of such Registration Statement, the Registration Statement ceases for any reason to remain continuously effective as to all Second Closing Registrable Securities included in such Registration Statement for any reason (including, without limitation, by reason of a stop orderduring the applicable Effectiveness Period, or the Company’s Purchasers are otherwise not permitted to utilize the Prospectus therein during the applicable Effectiveness Period to resell such Second Closing Registrable Securities, for more than thirty (30) consecutive trading days or more than an aggregate of sixty (60) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to update the Registration Statementas a “Second Closing Event”, and for purposes of clauses (A) and (D), but excluding the date on which such Second Closing Event occurs, and for purpose of clause (B) the date on which such two (2) Business Day period is exceeded, and for purpose of clause (C) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (E) the date on which such thirty (30) trading day or sixty (60) calendar day period, as applicable, is exceeded being referred to as a “Second Closing Event Date”), then, in addition to any Allowed Delay other rights that the Purchasers may have hereunder or under applicable law, on each such Second Closing Event Date and on each monthly anniversary of each such Second Closing Event Date (as defined belowif the applicable Second Closing Event shall not have been cured by such date) or until the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsapplicable Second Closing Event is cured, then the Company will make pro rata payments shall pay to each Investorthe Purchasers an amount in cash, as partial liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price purchase price paid by the Investor Purchasers for the Second Closing Registrable Securities issued in the Second Closing (pro rated for partial months). Notwithstanding anything to the contrary herein or in the Purchase Agreement, in no event shall the aggregate amount of such partial liquidated damages (excluding interest) payable to the Purchasers pursuant to this Section exceed, in the applicable Purchase Agreement aggregate, 6.0% of the aggregate purchase price paid by the Purchasers for the Second Closing Registrable Securities for each 30-day period or pro rata for issued in the Second Closing. If the Company fails to pay any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid monthly Section in full within three (3) Business Days of after the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month perioddate payable, the Company may suspend will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the use of Purchasers, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement portion of a material fact or omit month prior to state the cure of a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableSecond Closing Event.
Appears in 2 contracts
Sources: Securities Purchase Agreement (PDL Biopharma, Inc.), Registration Rights Agreement (Evofem Biosciences, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety the 90th day after the Closing Date (90) days after the 120th day if the Registration Statement is first filed with reviewed by the SEC or SEC), (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to the earlier of be filed pursuant to Section 2(a)(ii) (i) five (5) Business Days after the SEC shall have informed the Company that no review of 120 days if the Registration Statement will be made is reviewed by the SEC) or that (z) a Shelf Registration Statement is not declared effective by the SEC has no further comments on within ninety (90) days after the Qualification Deadline (120 days if the Registration Statement or (ii) is reviewed by the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineSEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Remedent, Inc.), Registration Rights Agreement (Remedent, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify covering the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies resale of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC as soon as practicable and prior to the earlier of (ix) five (5) ten Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (iiy) ninety (90) days the 90th day after the Registration Statement is first filed with filed. The Company shall notify the SEC Investors by facsimile or e-mail as promptly as practicable, and in any event, within 48 hours, after (yA) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or is declared effective and (B) after the filing of any related Prospectus under Rule 424(b), at which time the Company shall also provide the Investors with a copy of such related Prospectus. After the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such the Company shall take all actions, including without limitation updating the Registration Statement for any reason (includingas necessary, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell so that the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor may be sold pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable without restriction except as liquidated damages provided pursuant to this paragraph shall be paid monthly within three subparagraph (3ii) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashbelow.
(ii) For not more than twenty (20) thirty consecutive days or for a total of not more than forty-five (45) sixty days in any twelve (12) 12 month period, the Company may suspend may, without the use approval of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) Investors, delay the disclosure of material non-public information concerning the Company, Company and thereby suspend its obligations under paragraphs (a) and (c) of this Section 2 (as well as the right of the Investors to use any Prospectus included in any Registration Statement contemplated by this Section) if the disclosure of which at the time such material non-public information is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (ax) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) the Investors, shall the Company disclose to such Investor the Investors any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (by) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay, and (cz) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (REST Redux LLC), Registration Rights Agreement (Hoak Public Equities, LP)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the a Resale Registration Statement declared effective as soon as practicable, but, in any event, no later than 120 days after the Warrant Closing Date. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Resale Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Resale Registration Statement covering all of the Registrable Securities is not declared effective by the SEC prior to the earlier earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Resale Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Resale Registration Statement or (ii) the one hundred twentieth 120 days after the Warrant Closing Date (120thor, if pursuant to Section 2(a) such Resale Registration Statement was timely filed later than the 60th day after the Additional Shares Warrant Closing Date because the Company was not S-3 eligible prior to the Filing Deadline, the 60th day after the date that such Registration Statement was filed) or (B) after a Resale Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Resale Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Resale Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions), then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities such Investor’s Liquidated Damages Amount for each 30-day period (or pro rata for any portion thereof thereof) following the date by which such Resale Registration Statement should have been effective (until the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right earlier of the Investors to seek injunctive reliefdate on which the Resale Registration Statement is declared effective and end of the Effectiveness Period. The amounts payable as liquidated damages damages, pursuant to this paragraph or Section 2(a), shall be paid monthly in arrears within three (3) Business Days of the last day of each month 30-day period following the date of commencement of the Blackout Period accrual of Liquidated Damages (each a “Liquidated Damages Measurement Date”) and continuing until such time as Liquidated Damages cease to accrue, as determined pursuant to this paragraph or Section 2(a), as the termination of the Blackout Periodcase may be. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty thirty (2030) consecutive days or days, and for a total of not more than forty-five an aggregate of sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Resale Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is notwould be, in the good faith opinion of the Company, in the best interests of materially detrimental to the Company or (B) to amend or supplement the affected Resale Registration Statement or the related Prospectus so that such Resale Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Resale Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Mill Road Capital, L.P.), Senior Subordinated Note Purchase and Security Agreement (Physicians Formula Holdings, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the any Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after (A) any Registration Statement is declared effective and (B) the filing of any related Prospectus under Rule 424(b), at which time the Company shall simultaneously also provide the Investors with copies of any such related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyProspectus. If (A)(xA)(w) a Registration Statement covering the resale of the Shares and the Initial Warrant Shares and any and all other securities issued or issuable with respect to or in exchange for such Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety the 90th day after the Closing Date (90) days the 120th day after the Closing Date if the Registration Statement is first filed with reviewed by the SEC or SEC), (yx) a Registration Statement covering the resale of the Conversion Shares and the Additional Warrant Shares and any and all other securities issued or issuable with respect to or in exchange for such Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Automatic Conversion Date (the 120th day after the Automatic Conversion Date if the Registration Statement is reviewed by the SEC) or (y) a Registration Statement covering Additional Shares Filing Deadlineis not declared effective by the SEC within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (the 120th day after such date if the Registration Statement is reviewed by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0(i) 1.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities included in the applicable Registration Statement that has not been declared effective (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Additional Shares) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”)") and (ii) 1.0% of the aggregate amount invested by such Investor for the Registrable Securities included in the applicable Registration Statement that is not available for resales (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Additional Shares) for each 30-day period or pro rata for any portion thereof that sales could not be made thereunder as provided in clause (B) above. Such payments shall constitute the Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Purchase Agreement (Zila Inc), Registration Rights Agreement (Zila Inc)
Effectiveness. (i) The Company shall use its commercially reasonable efforts to have the Initial Registration Statement and any amendment declared effective as soon as practicableby the SEC by the earlier of (a) the 60th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement (or the 90th calendar day following the initial filing date of the Initial Registration Statement in the case of a full review by the SEC) and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review; provided, that in no event shall the deadline for the effectiveness of the Initial Registration Statement be earlier than the fifth Business Day following the date on which the Company files its Definitive Proxy Statement or Annual Report on Form 10-K that includes the disclosures required by Part III of Form 10-K, which shall be filed no later than April 30, 2025 (the “Effectiveness Deadline”). The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hoursthree Business Days, after any the Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors Investor with copies of any related Prospectus prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use commercially reasonable efforts to keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Registrable Securities is not declared effective Act and available for the resale by the SEC prior to the earlier Investors of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earliest to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (i) the Investor pursuant to date on which the applicable Purchase Agreement for Investors shall have resold all the Registrable Securities for each 30-day period or pro rata for any portion thereof following covered thereby; and (ii) the date on which the Registrable Securities may be resold by which such Registration Statement should have been effective the Investors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but The Initial Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in contain any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (Oncology Institute, Inc.), Registration Rights Agreement (Oncology Institute, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twentyforty-four eight (2448) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective effective, and shall simultaneously provide the Investors with copies access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If Subject to Section 2(d), if (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 120th day after the Additional Shares Filing Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form F-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 20-F (a “Maintenance Failure”), then then, at the election of each Investor, the Company will make pro rata payments to each Investorelecting Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement by such Investor for the such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such For each Investor that elects to receive liquidated damages, such payments shall constitute the such Investors’ exclusive monetary remedy for such events, but events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything to the contrary contained herein, the Company may may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus included that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in any the Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to has a bona fide business purpose for preserving as confidential, (AY) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly (a) notify each Investor provide prompt notice to holders whose Registrable Securities are included in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Merus N.V.), Registration Rights Agreement (Merus N.V.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within three (3) months following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within three (3) months following the demand of an Investor relating to the earlier of Additional Registrable Securities covered thereby, or with respect to either a Registration Statement which is subject to full review (iother than an exclusively "plain English review," for which an additional fifteen (15) five (5days shall be given) Business Days after by the SEC shall have informed staff, within four (4) months following the Company that no review of Closing Date or demand, as the case may be (each, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsspecifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange, then the Company will make pro pro-rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.02% of the aggregate Purchase Price amount paid by such Investor on the Investor pursuant Closing Date to the applicable Purchase Agreement Company for the Registrable Securities shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"), provided, however, that in the case of the events described in (A) or (B) above with respect only to the Additional Registrable Securities, such penalty shall equal 2% of the aggregate market value of such Additional Registrable Securities for the duration of the Blackout Period. Each such payment shall be due and payable within five (5) days of the end of each month (or ending portion thereof) of the Blackout Period. In the event the Company fails to make a payment required hereunder within thirty (30) days of its due date, the rate of such penalty shall be increased to 3% for the remainder of the Blackout Period. Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ ' exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (x) the right effectiveness of the Investors to seek injunctive reliefapplicable Registration Statement in the case of (A) and (B) above; (y) listing or inclusion of the Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange in the case of (C) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Investors, in lawful money of the United States or in shares of Common Stock at the Market Price (as defined in the Purchase Agreement), and amounts payable shall be paid monthly within three (3) Business Days of on the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Amounts payable hereunder shall be made to each cease when an Investor in cashno longer holds Warrants or Registrable Securities, or Additional Registrable Securities, as applicable.
(ii) For not more than twenty ten (2010) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. The duration of the Restricted Period provided for in the Purchase Agreement will be extended by the number of days of any and (c) use commercially reasonable efforts to terminate the all Allowed Delay as promptly as practicableDelays.
Appears in 2 contracts
Sources: Purchase Agreement (Insci Statements Com Corp), Registration Rights Agreement (Insci Statements Com Corp)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the any Registration Statement declared effective as soon as practicablepracticable after the filing. The Company shall respond promptly to any and all comments made by the staff of the SEC on any Registration Statement, and shall submit to the SEC, within two (2) business days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) business days after the submission of such request. The Company shall notify the Investors Purchaser by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any such Registration Statement is declared effective and shall simultaneously shall, upon request, provide the Investors Purchaser with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If .
(A)(xii) a If, with respect to any Registration Statement covering the Registrable Securities:
(A) such Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline,
(B) such Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of of: (ix) five ten (510) Business Days after the SEC shall have informed informs the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or Statement, (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to 120th calendar day following the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineClosing Date, or (Bz) in the event of a “review” by the SEC, the 160th calendar day following the Closing Date (as applicable, the “Effectiveness Deadline”), or
(C) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form S-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each InvestorPurchaser then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement by such Purchaser for the such Registrable Securities then held by such Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ Purchaser’s exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchaser to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Payment Date”). Such payments shall be made to each Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(iiiii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything to the contrary contained herein, the Company may may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus included that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in any the Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to has a bona fide business purpose for preserving as confidential, (AY) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly (a) notify each Investor provide prompt notice to holders whose Registrable Securities are included in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Selecta Biosciences Inc), Registration Rights Agreement (Selecta Biosciences Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable, but in no event later than the earlier of (a) 120 days following the Closing Date (or the date of the occurrence of additional Registrable Securities, as the case may be) and (b) 5 days following the date on which the SEC notifies the Company or its counsel that the Registration Statement is not subject to any further review. The In connection therewith, the Company shall notify respond to all SEC comments on the Investors Registration Statement and file any amendments to the Registration Statement within 15 business days following any date on which the SEC furnishes comments to, asks questions of, or requests further information from, the Company or its counsel with respect to the Registration Statement or any part thereof or any document incorporated by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after reference therein. After any Registration Statement is declared effective and by the SEC, the Company shall simultaneously provide the Investors with copies of any related Prospectus cause such Registration Statement to be used remain effective in connection accordance with the sale terms hereof, subject to permitted suspension of such effectiveness only for Allowed Delays (as defined below). On or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the date any Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell Company shall cause the Registrable Securities covered thereby due to market conditionsbe specifically listed or included for quotation on the Nasdaq National Market System, then the Company will make pro rata payments to each InvestorNasdaq Small Cap Market, as liquidated damages the New York Stock Exchange or the American Stock Exchange, and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement maintain such listing and quotation for the Registrable Securities for each 30-day period or pro rata for any portion thereof following and the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Common Stock in cashgeneral.
(ii) For not more than twenty (20) consecutive days or Trading Days (as defined in the Notes) and for a total of not more than forty-five thirty (4530) days Trading Days in any twelve (12) consecutive month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section not containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each the Investor in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an the Investor) , shall the Company disclose to such the Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Investor in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. The duration of the Registration Period will be extended by the number of days of any and (c) use commercially reasonable efforts to terminate the all Allowed Delay as promptly as practicableDelays.
Appears in 2 contracts
Sources: Registration Rights Agreement (Nexmed Inc), Registration Rights Agreement (Nexmed Inc)
Effectiveness. (i) The Company Corporation shall use commercially reasonable its best efforts to file each Registration Statement within 45 calendar days after the request by the Holders hereunder if the Registration Statement relates to a public offering of shares of Common Stock, and 60 calendar days for any other Registration Statement, and to have the each Registration Statement declared effective prior to the 60th calendar day following the date that such Registration Statement was initially filed with the SEC (the “Filing Date”) (or, in the event the SEC reviews and has written comments to the Registration Statement, the 90th calendar day following the Filing Date) (the “Effectiveness Deadline”); provided, however, that if the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as soon to such Registration Statement shall be the 3rd Business Day following the date on which the Corporation is so notified if such date precedes the dates otherwise required above, and the Corporation shall use its best efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of the following (the “Effectiveness Period”): (A) such time as practicableall of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (B) there otherwise ceases to be Registrable Securities, or (C) in the case of a Shelf Registration Statement, three years from the date of filing thereof; provided that if, at the expiration of such three-year period, any Registrable Securities remain outstanding, the Company shall use its best efforts to file on the date of expiration of such three-year period a new Shelf Registration Statement. The Company Corporation shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 48 hours, after any (X) the Corporation receives written comments to a Registration Statement from the SEC, (Y) the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, and (Z) a Registration Statement is declared effective. At such time as the Corporation notifies the Purchasers that a Registration Statement is declared effective and as provided in the immediately preceding sentence, the Corporation shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) 40 consecutive calendar days or for a total of not more than forty-five 75 calendar days (45which need not be consecutive days) days in any twelve (12) -month period, the Company Corporation may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the CompanyCorporation, by deferring the filing of any Registration Statement as otherwise required under this Section 2, or suspending the use of any Prospectus included in any registration contemplated by this Section, if such disclosure of which at the time is not, in the good faith opinion of the CompanyCorporation, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Corporation (an “Allowed Delay”); provided, that the Company Corporation shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Corporation disclose to such Investor Purchaser any material non-public information giving rise to of the facts or circumstances regarding) an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay, and (c) use commercially reasonable its best efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Square 1 Financial Inc), Registration Rights Agreement (Square 1 Financial Inc)
Effectiveness. Sections 6.1 through 6.8, Section 6.10, Section 6.11 and this Section 6.16 shall be effective upon the execution of this Agreement by the parties hereto. All other provisions of this Agreement shall become automatically effective, without further action of the parties, upon the later of the date (such date, the “Effectiveness Date”) (i) that is two business days prior to the date (the “Scheduled Date”) on which the FDIC is scheduled to be appointed receiver for the Failed Bank and will enter into the P&A Agreement with the Bank relating to the Bank’s purchase of certain assets and assumption of deposits (and certain other specified liabilities) of the Failed Bank and (ii) that the Company notifies the Purchasers of the Scheduled Date. The Company will provide notification to each Purchaser of (i) the Scheduled Date upon the notification to the Company by the FDIC that the Bank is the winning bidder for the Failed Bank and (ii) any changes to the Scheduled Date by the FDIC following the initial determination of the Scheduled Date by the FDIC. If (i) the FDIC notifies the Company that the Bank will not be permitted to enter a bid for the Failed Bank, (ii) the FDIC has notified the Company that the scheduled due date for bids with respect to the Failed Bank has been modified, changed or set to a date later than June 1, 2010, or such other date as the parties mutually agree, or that the FDIC intends not to schedule or re-schedule a bid date for the Failed Bank on or before June 1, 2010, or such other date as the parties mutually agree, (iii) the Bank fails to submit a bid for the Failed Bank by the deadline for such submission established by the FDIC, (iv) the FDIC has notified the Company that the Bank is not the winning bidder for the Failed Bank, (v) no bid by the Bank for the Failed Bank has been accepted by the FDIC by June 1, 2010 or (vi) if the Bank has been selected as the winning bidder for the Failed Bank, the P&A Closing has not occurred by June 30, 2010, then, in each case, this Agreement shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicableterminate, other than Sections 6.1 through 6.8, Section 6.10, Section 6.11 and this Section 6.16, which shall survive such termination. The Company shall promptly notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies Purchaser upon receipt of any related Prospectus to be used notification described in connection with the sale or other disposition of two preceding sentences from the securities covered therebyFDIC. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant Prior to such Registration Statement for any reason (includingtermination, without limitation, by reason neither party may revoke its acceptance of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashAgreement.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Oriental Financial Group Inc), Securities Purchase Agreement (Oriental Financial Group Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twentyforty-four eight (2448) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If Subject to Section 2(d), if (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (ix) five ten (510) Business Days after the SEC shall have informed informs the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or and (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing Closing Date (or the 120th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form S-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each InvestorInvestor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement by such Investor for the such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. Notwithstanding the foregoing, the Company will not be liable for any liquidated damages under this Section 2(c)(i) with respect to any Warrant Shares prior to their issuance.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything to the contrary contained herein, the Company may may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus included in any that forms a part of a Registration Statement contemplated by this Section in the event that Statement, if the Company determines in good faith that such suspension is necessary to (A) delay the determines that it would be required to make disclosure of nonpublic material non-public information concerning in the Registration Statement that would otherwise not be required to be disclosed at that time that would be materially adverse to the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly (a) notify each Investor provide prompt notice to holders whose Registrable Securities are included in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entasis Therapeutics Holdings Inc.), Securities Purchase Agreement (Innoviva, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the any Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineClosing Date, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (SharpSpring, Inc.), Registration Rights Agreement (Aehr Test Systems)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with the SEC Filing Deadline or (y) a Shelf Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing Qualification Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Existing Agreement, the Borrowing Notice and/or the Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or Company, (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading, or (C) obtain an expert consent which is required for the continued use of any Prospectus included in any Registration Statement (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fir Tree Inc.), Registration Rights Agreement (Chinacast Education Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the each Registration Statement declared effective as soon as practicablepracticable after such Registration Statement has been filed with the SEC, but no later than the Effectiveness Deadline. By 5:30 p.m. (Eastern time) on the second Business Day following the date on which the Registration Statement is declared effective by the SEC, the Company shall file with the SEC, in accordance with Rule 424 under the 1933 Act, the final prospectus to be used in connection with sales pursuant to such Registration Statement. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, event within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty forty-five (2045) consecutive days or for a total of not more than forty-five ninety (4590) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public nonpublic information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the such Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Skye Bioscience, Inc.), Registration Rights Agreement (Krystal Biotech, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, possible after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyfiling. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within 150 days following the Closing Date (or if the Company fails to file an acceleration request within the earlier of (i) five (5) Business Days after fifth day following the date on which the Company is notified by the SEC shall that such Registration Statement will not be reviewed or is no longer subject to further review and comments seeking to have informed the Company that no review of SEC declare the Registration Statement will be made or that effective), (the SEC has no further comments on the “Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowC) or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market System or the Nasdaq Small-Cap Market (each an “Approved Market”) or trading of the Common Stock is suspended or halted thereon, or (D) the Company fails, refuses or is otherwise unable to market conditionstimely issue Underlying Shares upon conversion of the Preferred Shares or Warrant Shares upon exercise of the Warrants, in accordance with the terms of the Certificate and Warrants, unlegended certificates for the Underlying Shares or Warrant Shares as required under the Agreements, in each case within ten (10) days following the Purchaser’s written demand for issuance of such Underlying Shares or Warrant Shares or certificates (any such event under clause (A), (B), (C) or (D) constituting a “Registration Default”), then the Company will make pro rata payments to each Investor, Conversion Price shall be automatically reduced by 2% as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which occurrence of such Registration Statement should have been effective (Default. The aforementioned 2% reduction shall only be applied once regardless of the “Blackout Period”)reoccurrence of any Registration Default. Such payments The Company shall constitute promptly confirm in writing the Investors’ exclusive monetary remedy for such eventsadjusted Conversion Price, but provided that any failure to do so shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashsuch automatic adjustment.
(ii) For not more than twenty five (205) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 2 contracts
Sources: Registration Rights Agreement (Harken Energy Corp), Registration Rights Agreement (Harken Energy Corp)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC reviews such Registration Statement), or (y) a Shelf Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineQualification Deadline (the 120th day if the SEC reviews such Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Visualant Inc), Registration Rights Agreement (Visualant Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the any Registration Statement declared effective as soon as practicablepracticable after the filing. The Company shall respond promptly to any and all comments made by the staff of the SEC on any Registration Statement, and shall submit to the SEC, within two (2) business days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) business days after the submission of such request. The Company shall notify the Investors each Purchaser by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any such Registration Statement is declared effective and shall simultaneously shall, upon request, provide the Investors each Purchaser with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If .
(A)(xii) If, with respect to any Registration Statement covering the Registrable Securities:
(A) such Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline (a “Filing Failure”),
(B) such Registration Statement covering the Registrable Securities is not declared effective (an “Effectiveness Failure”) by the SEC prior to the earlier of of: (ix) five seven (57) Business Days after the SEC shall have informed informs the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or Statement, (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to 175th calendar day following the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineClosing, or (Bz) in the event of a “review” by the SEC, the 205th calendar day following the Closing (as applicable, the “Effectiveness Deadline”), or
(C) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form S-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each InvestorPurchaser then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement by such Purchaser for the such Registrable Securities then held by such Purchaser on each of the following dates: on the initial date of the Filing Failure, Effectiveness Failure or Maintenance Failure, as applicable, and on every thirtieth (30th) day thereafter (pro rated for each periods less than thirty (30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective ) days) (the “Blackout Period”). Such payments shall constitute the Investors’ Purchaser’s exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchaser to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Payment Date”). Such payments shall be made to each Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(iiiii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything to the contrary contained herein, the Company may may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus included that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in any the Registration Statement contemplated by this Section in the event that the Company has a bona fide business purpose for preserving as confidential, (Y) determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 360-day period (any such suspension contemplated by this Section 2(c)(iii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly (a) notify each Investor provide prompt notice to holders whose Registrable Securities are included in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Arcutis Biotherapeutics, Inc.), Securities Purchase Agreement (Arcutis Biotherapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially its reasonable best efforts to have the Initial Registration Statement and any amendment declared effective by the SEC at the earliest possible date but no later than the earlier of the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review (the “Effectiveness Deadline”); provided that if the SEC is not available to review or declare effective registration statements as soon of the Effectiveness Deadline, including because of a “lapse in appropriations” (as practicabledescribed in the SEC’s Operations Plan Under a Lapse in Appropriations and Government Shutdown, August 7, 2025, or any similar guidance subsequently published by the SEC), then, after the SEC resumes reviewing and declaring effective registration statements, the Effectiveness Deadline shall be the fifth (5th) Business Day following the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review (or, in the event the SEC reviews and has written comments to the Initial Registration Statement, the 75th calendar day following the date the SEC resumes reviewing and declaring effective registration statements). The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 24 hours, after any the Initial Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use reasonable best efforts to keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Registrable Securities is not declared effective Act and available for the resale by the SEC prior to the earlier Investors of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earliest to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (i) the Investor pursuant to date on which the applicable Purchase Agreement for Investors shall have resold all the Registrable Securities for each 30-day period covered thereby pursuant to any applicable securities exemption where the recipient thereof receives unrestricted securities, including Rule 144 (or pro rata for any portion thereof following successor provision) or pursuant to a Registration Statement; and (ii) the date on which the Registrable Securities may be resold by which such Registration Statement should have been effective the Investors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but The Initial Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in contain any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (Athira Pharma, Inc.), Registration Rights Agreement (Athira Pharma, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with the SEC Closing Date, or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) or (z) a Shelf Registration Statement is not declared effective by the earlier of (i) five (5) Business Days SEC within 90 days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, Qualification Deadline or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (WPCS International Inc), Registration Rights Agreement (Iq Biometrix Inc)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC reviews the Registration Statement) or (y) a Shelf Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineQualification Deadline (the 120th day if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price amount paid by the Investor pursuant such Purchaser to the applicable Purchase Agreement for the Registrable Securities exercise its Old Warrants for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Purchaser in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an InvestorPurchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Graphon Corp/De), Registration Rights Agreement (Graphon Corp/De)
Effectiveness. (i) The Company shall use commercially its reasonable best efforts to have the Initial Registration Statement and any amendment declared effective by the SEC at the earliest possible date but no later than the earlier of the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review (the “Effectiveness Deadline”); provided that if the SEC is not available to review or declare effective registration statements as soon of the Effectiveness Deadline, including because of a “lapse in appropriations” (as practicabledescribed in the SEC’s Operations Plan Under a Lapse in Appropriations and Government Shutdown, August 7, 2025, or any similar guidance subsequently published by the SEC), then, after the SEC resumes reviewing and declaring effective registration statements, the Effectiveness Deadline shall be the fifth (5th) Business Day following the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review (or, in the event the SEC reviews and has written comments to the Initial Registration Statement, the 75th calendar day following the date the SEC resumes reviewing and declaring effective registration statements). The Company shall notify the Investors Purchaser by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 24 hours, after any the Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors Purchaser with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use reasonable best efforts to keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Registrable Securities is not declared effective Act and available for the resale by the SEC prior to the earlier Purchaser of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earliest to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (i) the Investor pursuant to date on which the applicable Purchase Agreement for Purchaser shall have resold all the Registrable Securities for each 30-day period covered thereby pursuant to any applicable securities exemption, including Rule 144 (or pro rata for any portion thereof following successor provision) or pursuant to a Registration Statement; and (ii) the date on which the Registrable Securities may be resold by which such Registration Statement should have been effective the Purchaser without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but The Initial Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in contain any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (Athira Pharma, Inc.), Registration Rights Agreement (Athira Pharma, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, practicable after any Registration Statement it is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection filed with the sale or other disposition of the securities covered therebySEC. If (A)(xA) the Company fails to file with the SEC a Registration Statement in accordance with all of the requirements of this Agreement on or before the date by which the Company is required to file the Registration Statement pursuant to Section 2(a)(i) above, (B) the Company fails to file with the SEC the Registration Statement covering the Additional Registrable Securities is not declared effective by in accordance with all of the requirements of this Agreement within 30 days following demand of the Holder relating to the Additional Registrable Securities to be covered thereby, (C) the Company fails to file with the SEC prior a request for acceleration of effectiveness of a Registration Statement to a time and date not more than 48 hours after the earlier submission of (i) five (5) Business such request, within three Trading Days after the SEC shall have informed date the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement or Statement, as the case may be, (iiD) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior to the earlier of within 75 days (i) five (5) Business Days after or 105 days in case the SEC shall have informed staff reviews such Registration Statement) following the Company that no review of Closing Date, or the Registration Statement will be made or that covering additional Registrable Securities is not declared effective by the SEC has no further comments within 75 days (or 105 days in case the SEC staff reviews such Registration Statement) following the date on which a Registration Insufficiency Event occurs, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within 75 days (or (ii105 days in case the SEC staff reviews such Registration Statement) following demand of the one hundred twentieth (120th) day after Holder relating to the Additional Shares Filing DeadlineRegistrable Securities to be covered thereby, or (BE) except as otherwise permitted by Section 2(c)(ii), after a Registration Statement has been declared effective by the SEC, SEC sales cannot be made pursuant to such Registration Statement or the related Prospectus for any reason (reason, including, without limitation, by reason of a stop order, misstatements or omissions in such Registration Statement or Prospectus, or the Company’s failure to update such Registration Statement or Prospectus, excluding any such inability to make sales that results from an untrue statement of a material fact in such Registration Statement or Prospectus or omission to state a material fact required to be stated in such Registration Statement or Prospectus in order to make the statements therein not misleading, which misstatement or omission was made by the Holder in written information it furnished to the Company specifically for inclusion in such Registration Statement or Prospectus which such information was substantially relied upon by the Company in preparation of the Registration Statement)Statement or Prospectus or any amendment or supplement thereto, but excluding any Allowed Delay unless the Company shall have failed timely to amend or supplement such Registration Statement or Prospectus after the Holder shall have corrected such misstatement or omission, or (as defined belowF) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions(or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the Nasdaq, the NYSE or the AMEX (each an “Approved Market”), or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the Principal Market for the Common Stock (each of the events in the preceding clauses (A) through (F) a “Compensation Event”), then the Company will make pro rata payments to each Investor, the Holder as partial liquidated damages for the minimum amount of damages to the Holder by reason thereof, and not as a penalty, in an at the Compensation Rate (the “Compensation Payments”) on the sum of (x) the outstanding principal amount equal to 2.0% of, and accrued interest on, the Note held at such time by the Holder plus (y) the amount, if any, by which the product of (i) the average of the daily VWAPs for all of the Trading Days during the particular portion of the Compensation Period for which such computation is being made times (ii) the number of Warrant Shares issuable upon exercise for cash of the unexercised portion of the Warrants held at such time by the Holder exceeds the aggregate Purchase Price paid of the number of Warrant Shares issuable upon exercise for cash of the unexercised portion of the Warrants held at such time by the Investor pursuant to Holder, plus (z) the applicable Purchase Agreement for product of (1) the number of outstanding Registrable Securities held at such time by the Holder times (2) the greater of (i) the average of the daily VWAPs for all of the Trading Days in the particular portion of the Compensation Period for which such computation is being made and (ii) the Purchase Price of such Registrable Securities (in the case of Registrable Securities issued upon exercise of the Warrants), the Conversion Price of such Registrable Securities (in the case of Registrable Securities issued upon conversion of the Note), the Interest Share Price (in the case of Registrable Securities issued in lieu of payment of cash interest on the Note) or the Computed Price used to compute that portion of the Share Redemption Share Amount consisting of such shares (in the case of Registrable Securities issued in a Share Redemption of the Note), in each such case for each 30-day period or pro rata for on which any portion thereof following the date by which such Registration Statement should have been effective Compensation Event is continuing (the “Blackout Compensation Period”). Each such payment shall be due and payable within five days after the end of each calendar month of the Compensation Period until the termination of the Compensation Period and within five days after such termination. Such payments shall be in partial compensation to the Holder, and shall not constitute the Investors’ Holder’s exclusive monetary remedy for any Compensation Event; provided, however, that if because of a particular Compensation Event the Holder is successful in recovering on a claim for damages under this Agreement from such eventsCompensation Event, but the amount of Compensation Payments previously paid by the Company to the Holder with respect to such Compensation Event shall not affect be applied to reduce the right amount of such recovery to the extent of such Compensation Event. A particular Compensation Period shall terminate upon (v) the filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) the date sales can once again be made under the Registration Statement in the case of clause (E) above, (y) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (F) above; and (z) in the case of the events described in clauses (C), (D) or (E) above, the earlier termination of the Registration Period (as defined in Section 3(a) below), and in each such case any Compensation Period that commences by reason of the occurrence of such event shall terminate if at the time no other Compensation Event is continuing. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid monthly payable in lawful money of the United States. If the Company fails to pay any liquidated damages pursuant to this Section in full within three days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (3or such lesser rate that is the highest rate permitted by applicable law) Business Days of to the last day of each month following Holder, accruing daily from the commencement of date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. Amounts payable as partial liquidated damages hereunder shall cease when the Blackout Period until Holder no longer holds any Note, the termination of the Blackout Period. Such payments shall be made to each Investor in cashWarrants, Registrable Securities or Additional Registrable Securities.
(ii) For not more than twenty (20) ten consecutive days Trading Days or for a total of not more than forty-five (45) days 20 Trading Days in any twelve (12) month periodperiod of 12 consecutive months, the Company may suspend the use of any Prospectus included in any the Registration Statement contemplated by this Section in the event Statement(s) that are effective at such time because the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, if the disclosure of which such information at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement would be unduly detrimental to the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Company’s affairs (an “Allowed Delay”); provided, that the Company shall promptly not later than the date a suspension goes into effect (a) notify each Investor the Holder in writing of the commencement suspension of and use of the reasons for an Allowed DelayRegistration Statement (but in no event, but shall not (without the prior written consent of an Investor) the Holder, shall the Company disclose to such Investor the Holder any of the material non-public information giving rise to an Allowed Delay), and (b) advise the Investors Holder in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (cDelay. The Company shall notify the Holder on the date a Registration Statement the use of which has been suspended under this Section 2(c)(ii) is once again available for use. If the Company shall have suspended the use commercially reasonable efforts to terminate of the Registration Statement, then no period of Allowed Delay as promptly as practicablesubsequent to such suspension shall commence sooner than 30 days after the date on which the Company notifies the Holder that such earlier suspension shall have been lifted.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicablewithin the earliest of (x) one hundred twenty (120) days after the initial filing date of such Registration Statement, (y) one hundred twenty (120) days after the Filing Deadline and (z) the fifth (5th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be reviewed or will not be subject to further review (such date, the “Effectiveness Deadline”); provided, however, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the SEC is open for business. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty fifteen (2015) consecutive days, provided the first day of any such period be at least five (5) days after the last day of any such prior period, or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may following the date a Registration Statement is declared effective by the SEC, suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an Investor in accordance with the Purchase Agreement in connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale, prior to the Investor’s receipt of the notice of an Allowable Delay and for which the Investor has not yet settled.
Appears in 1 contract
Effectiveness. (i) The Company Purchaser shall use commercially reasonable efforts to have the Initial Registration Statement and any amendment declared effective as soon as practicableby the SEC at the earliest possible date but no later than the earlier of (a) the 75th calendar day following the initial filing date of the Initial Registration Statement and (b) the fifth Business Day after the date the Purchaser is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be "reviewed" or will not be subject to further review (the "Effectiveness Deadline"). The Company Purchaser shall notify the Investors Antev Vendors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 24 hours, after any the Registration Statement or any amendment thereto is declared effective or any Prospectus supplement is filed or the Registration Statement or Prospectus is otherwise supplemented and shall simultaneously provide the Investors Antev Vendors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities Registrable Securities covered thereby. If (A)(x) The Purchaser shall use commercially reasonable efforts to keep a Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Registrable Securities is not declared effective 1933 Act and available for the resale by the SEC prior to the earlier Antev Vendors of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earliest to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (i) the Investor pursuant to date on which the applicable Purchase Agreement for Antev Vendors shall have resold all the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
covered thereby; and (ii) For not more than twenty the date on which all Registrable Securities may be resold by the Antev Vendors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Purchaser to be in compliance with the current public information requirement under Rule 144 under the 1933 Act or any other rule of similar effect (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any "Registration Period"). The Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (Aincluding any amendments or supplements thereto and prospectuses contained therein) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 1 contract
Sources: Securities Exchange Agreement (Medicus Pharma Ltd.)
Effectiveness. (ia) The Subject to the following Section 2.5(b), the Company shall use commercially will be deemed not to have used its reasonable best efforts to have cause the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, to become, or to remain, effective during the requisite period if the Company voluntarily takes any action that would result in any such Registration Statement not being declared effective or in the holders of Registrable New Notes covered thereby not being able to exchange or offer and sell such Registrable New Notes during that period as soon as practicable. The Company shall notify and to the Investors extent contemplated hereby, unless such action is required by facsimile or e-mail as promptly as practicableapplicable law.
(b) Notwithstanding the foregoing Section 2.5(a), and in any eventsubject to the Holders rights under Section 2.4, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide if the Investors with copies Board of any related Prospectus to be used in connection with the sale or other disposition Directors of the securities covered thereby. If (A)(x) a Registration Statement covering Company, in its good faith judgment, determines that the Registrable Securities is Registered Exchange Offer should not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that continued because it would materially interfere with any material financing, acquisition, corporate reorganization or merger or other material transaction involving the SEC Company or any of its subsidiaries (a "Valid Business Reason"), (x) the Company may postpone filing a registration statement relating to the Registered Exchange Offer until such Valid Business Reason no longer exists, but in no event for more than three months, and (y) in case a registration statement has been filed relating to the Registered Exchange Offer, the Company may cause registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no further comments on the Registration Statement longer exists, but in no event for more than three months (such period of postponement or withdrawal under sub clause (iix) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective of this Section 2.5(b), the "Postponement Period"); and the Company shall give the Trustee and the Holders written notice of its determination to postpone or withdraw the Registered Exchange Offer and of the fact that the Valid Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after the occurrence thereof provided, however, that any such postponement or withdrawal shall be subject to the payment by the SEC prior Company of liquidated damages pursuant to the earlier Section 2.4 hereof. The Holders agree that, upon receipt of (i) five (5) Business Days after the SEC shall have informed any notice from the Company that no review the Company has determined to withdraw any registration statement pursuant to clause (y) above, the Holders will discontinue any disposition of Registrable New Notes pursuant to such registration statement and, if so directed by the Company, will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Holders possession of the prospectus covering such Registrable New Notes that was in effect at the time of receipt of such notice. If the Company shall give any notice of withdrawal or postponement of a registration statement, the Company shall, at such time as the Valid Business Reason that caused such withdrawal or postponement no longer exists (but in no event later than three months after the date
(c) An Exchange Offer Registration Statement will be made pursuant to Section 2.1 hereof or that the SEC has no further comments on the a Shelf Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, sales canhowever, that if, after it has been declared effective, the Exchange Offer, the Exchange Offer Registration Statement or offering of Registrable New Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not be made to have become effective during the period of such interference, until the offering of Registrable New Notes pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashmay legally resume.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Wright Medical Technology Inc)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 120th day after the Registration Statement is first filed with the SEC or Closing Date, (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 120th day after the Additional Shares Filing Deadline, or (z) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Qualification Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section Section, or delay the filing of any post-effective amendment or supplement thereto, in the event that the Company determines in good faith that such suspension or delay (as applicable) is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as reasonably practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Power Solutions International, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, practicable after any Registration Statement it is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection filed with the sale or other disposition of the securities covered therebySEC. If (A)(xA) the Company fails to file with the SEC a Registration Statement in accordance with all of the requirements of this Agreement on or before the date by which the Company is required to file the Registration Statement pursuant to Section 2(a)(i) above, (B) the Company fails to file with the SEC the Registration Statement covering the Additional Registrable Securities is not declared effective by in accordance with all of the requirements of this Agreement within 30 days following demand of the Holder relating to the Additional Registrable Securities to be covered thereby, (C) the Company fails to file with the SEC prior a request for acceleration of effectiveness of a Registration Statement to a time and date not more than 48 hours after the earlier submission of (i) five (5) Business such request, within three Trading Days after the SEC shall have informed date the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement or Statement, as the case may be, (iiD) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior to the earlier of within 75 days (i) five (5) Business Days after or 105 days in case the SEC shall have informed staff reviews such Registration Statement) following the Company that no review of Closing Date, or the Registration Statement will be made or that covering additional Registrable Securities is not declared effective by the SEC has no further comments within 75 days (or 105 days in case the SEC staff reviews such Registration Statement) following the date on which a Registration Insufficiency Event occurs, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within 75 days (or (ii105 days in case the SEC staff reviews such Registration Statement) following demand of the one hundred twentieth (120th) day after Holder relating to the Additional Shares Filing DeadlineRegistrable Securities to be covered thereby, or (BE) except as otherwise permitted by Section 2(c)(ii), after a Registration Statement has been declared effective by the SEC, SEC sales cannot be made pursuant to such Registration Statement or the related Prospectus for any reason (reason, including, without limitation, by reason of a stop order, misstatements or omissions in such Registration Statement or Prospectus, or the Company’s 's failure to update such Registration Statement or Prospectus, excluding any such inability to make sales that results from an untrue statement of a material fact in such Registration Statement or Prospectus or omission to state a material fact required to be stated in such Registration Statement or Prospectus in order to make the statements therein not misleading, which misstatement or omission was made by the Holder in written information it furnished to the Company specifically for inclusion in such Registration Statement or Prospectus which such information was substantially relied upon by the Company in preparation of the Registration Statement)Statement or Prospectus or any amendment or supplement thereto, but excluding any Allowed Delay unless the Company shall have failed timely to amend or supplement such Registration Statement or Prospectus after the Holder shall have corrected such misstatement or omission, or (as defined belowF) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions(or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the Nasdaq, the NYSE or the AMEX (each an "Approved Market"), or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the Principal Market for the Common Stock (each of the events in the preceding clauses (A) through (F) a "Compensation Event"), then the Company will make pro rata payments to each Investor, the Holder as partial liquidated damages for the minimum amount of damages to the Holder by reason thereof, and not as a penalty, in an at the Compensation Rate (the "Compensation Payments") on the sum of (x) the outstanding principal amount equal to 2.0% of, and accrued interest on, the Note held at such time by the Holder plus (y) the amount, if any, by which the product of (i) the average of the daily VWAPs for all of the Trading Days during the particular portion of the Compensation Period for which such computation is being made times (ii) the number of Warrant Shares issuable upon exercise for cash of the unexercised portion of the Warrants held at such time by the Holder exceeds the aggregate Purchase Price paid of the number of Warrant Shares issuable upon exercise for cash of the unexercised portion of the Warrants held at such time by the Investor pursuant to Holder, plus (z) the applicable Purchase Agreement for product of (1) the number of outstanding Registrable Securities held at such time by the Holder times (2) the greater of (i) the average of the daily VWAPs for all of the Trading Days in the particular portion of the Compensation Period for which such computation is being made and (ii) the Purchase Price of such Registrable Securities (in the case of Registrable Securities issued upon exercise of the Warrants), the Conversion Price of such Registrable Securities (in the case of Registrable Securities issued upon conversion of the Note), the Interest Share Price (in the case of Registrable Securities issued in lieu of payment of cash interest on the Note) or the Computed Price used to compute that portion of the Share Redemption Share Amount consisting of such shares (in the case of Registrable Securities issued in a Share Redemption of the Note), in each such case for each 30-day period or pro rata for on which any portion thereof following the date by which such Registration Statement should have been effective Compensation Event is continuing (the “Blackout "Compensation Period”"). Each such payment shall be due and payable within five days after the end of each calendar month of the Compensation Period until the termination of the Compensation Period and within five days after such termination. Such payments shall be in partial compensation to the Holder, and shall not constitute the Investors’ Holder's exclusive monetary remedy for any Compensation Event; provided, however, that if because of a particular Compensation Event the Holder is successful in recovering on a claim for damages under this Agreement from such eventsCompensation Event, but the amount of Compensation Payments previously paid by the Company to the Holder with respect to such Compensation Event shall not affect be applied to reduce the right amount of such recovery to the extent of such Compensation Event. A particular Compensation Period shall terminate upon (v) the filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) the date sales can once again be made under the Registration Statement in the case of clause (E) above, (y) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (F) above; and (z) in the case of the events described in clauses (C), (D) or (E) above, the earlier termination of the Registration Period (as defined in Section 3(a) below), and in each such case any Compensation Period that commences by reason of the occurrence of such event shall terminate if at the time no other Compensation Event is continuing. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid monthly payable in lawful money of the United States. If the Company fails to pay any liquidated damages pursuant to this Section in full within three days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (3or such lesser rate that is the highest rate permitted by applicable law) Business Days of to the last day of each month following Holder, accruing daily from the commencement of date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. Amounts payable as partial liquidated damages hereunder shall cease when the Blackout Period until Holder no longer holds any Note, the termination of the Blackout Period. Such payments shall be made to each Investor in cashWarrants, Registrable Securities or Additional Registrable Securities.
(ii) For not more than twenty (20) ten consecutive days Trading Days or for a total of not more than forty-five (45) days 20 Trading Days in any twelve (12) month periodperiod of 12 consecutive months, the Company may suspend the use of any Prospectus included in any the Registration Statement contemplated by this Section in the event Statement(s) that are effective at such time because the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, if the disclosure of which such information at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement would be unduly detrimental to the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Company's affairs (an “"Allowed Delay”"); provided, that the Company shall promptly not later than the date a suspension goes into effect (a) notify each Investor the Holder in writing of the commencement suspension of and use of the reasons for an Allowed DelayRegistration Statement (but in no event, but shall not (without the prior written consent of an Investor) the Holder, shall the Company disclose to such Investor the Holder any of the material non-public information giving rise to an Allowed Delay), and (b) advise the Investors Holder in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (cDelay. The Company shall notify the Holder on the date a Registration Statement the use of which has been suspended under this Section 2(c)(ii) is once again available for use. If the Company shall have suspended the use commercially reasonable efforts to terminate of the Registration Statement, then no period of Allowed Delay as promptly as practicablesubsequent to such suspension shall commence sooner than 30 days after the date on which the Company notifies the Holder that such earlier suspension shall have been lifted.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the each Additional Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Lenders by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Additional Registration Statement is declared effective and shall simultaneously provide the Investors Lenders with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a an Additional Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to Commission within ninety (90) days following the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the time such Additional Registration Statement will was required to be made filed pursuant to Section 2(a)(ii) (or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after twenty days if reviewed by the Additional Shares Filing DeadlineSEC), or (B) after a an Additional Registration Statement has been declared effective by the SECCommission, sales cannot be made pursuant to such Additional Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Additional Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities Additional Shares covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph 3.1(a)(iii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price paid principal amount invested by the Investor pursuant Lenders that is attributable to the applicable Purchase Agreement for the Registrable Securities such Additional Shares for each 30-30- day period or pro rata for any portion thereof following the date by which such Additional Registration Statement should have been effective (the “Additional Registration Blackout Period”). Such payments shall be in partial compensation to the Lenders, and shall not constitute the InvestorsLenders’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Additional Registration Blackout Period until the termination of the Additional Registration Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the any Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 120th day after the Registration Statement is first filed with the SEC Closing Date or (y) a Registration Statement covering the Additional Shares Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 120th day after the Additional Shares Registrable Securities Filing Deadline, or (B) after a Registration Statement has been declared effective by the SECSEC but before the end of the Effectiveness Period (as defined below), sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid stated value of the Series D Preferred Stock received by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30120-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month 120-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Speed Commerce, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC or reviews such Registration Statement), (y) a Registration Statement covering Additional Shares the Remaining Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Share Increase Date (the 120th day if the SEC reviews such Registration Statement), or (z) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineQualification Deadline (the 120th day if the SEC reviews such Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement Statement(s) declared effective as soon as practicablepracticable (including filing with the SEC a request for acceleration of its effectiveness in accordance with Rule 461 within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the staff of the SEC that a Registration Statement will not be reviewed, or not be subject to further review), with respect to the initial SB-2 Registration Statement filed pursuant to Section 2(a) hereof, but in any event no later than November 14, 2007. The Company shall notify the Investors Purchasers or Nordic by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers or Nordic with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the SB-2 Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review staff of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company (orally or in writing, whichever is earlier) that no review of the such Registration Statement will not be made or that reviewed by the staff of the SEC has no or not be subject to further comments on the Registration Statement review or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineNovember 14, 2007 or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to Section 2(e)(ii) below, then then, in addition to any other rights each Purchaser may have hereunder or under applicable law, the Company will make pro rata payments pay (i) an amount in cash to each InvestorPurchaser, as partial liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price purchase price paid for Registrable Securities by the Investor such Purchaser pursuant to the applicable Purchase Agreement up to a maximum amount of all liquidated damages payable under this Agreement to any Purchaser of 10% of the purchase price paid for the Registrable Securities by such Purchaser pursuant to the Purchase Agreement and (ii) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective occurrence of an event set forth in any of (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such eventsA) or (B) above an amount in cash to each Purchaser, but shall as partial liquidated damages and not affect the right as a penalty, equal to 1.5% of the Investors aggregate purchase price paid for Registrable Securities by such Purchaser pursuant to seek injunctive reliefthe Purchase Agreement up to a maximum amount of all liquidated damages payable under this Agreement to any Purchaser of 10% of the purchase price paid for Registrable Securities by such Purchaser pursuant to the Purchase Agreement. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid within three (3) Business Days of the occurrence of an event set forth in any of (A) or (B) above and monthly thereafter within three (3) Business Days of the last day of each month following the commencement occurrence of an event set forth in any of (A) or (B) above until such events are cured. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid within three (3) Business Days of the Blackout Period until the termination occurrence of an event set forth in any of (A) or (B) above and monthly thereafter within three (3) Business Days of the Blackout Periodlast day of each month following the occurrence of an event set forth in any of (A) or (B) above until such occurrence has been cured. If the Company fails to pay any partial liquidated damages pursuant to this section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser amount that is permitted to be paid by applicable law) to the Purchaser, accruing daily from the date such payments are due until such amounts, plus all such interest thereon, are paid in full. Such payments shall be made to each Investor Purchaser in cashimmediately available cash funds. For purposes of the obligations of the Company under this Agreement, except in the case of any Purchasers who elect in writing not to have its Registrable Securities included in the Registration Statement, no Registration Statement shall be considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Purchasers of such Registrable Securities as “Selling Stockholders” and includes such other information as is required to be disclosed with respect to such Purchasers to permit them to sell all of their Registrable Securities pursuant to such Registration Statement.
(ii) For not more than twenty fifteen (2015) consecutive days or for a total of not more than forty-five (45) thirty days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section or by delaying any post-effective amendment to the Form SB-2 Registration Statement, if such disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Purchasers or Nordic in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser or Nordic, shall the Company disclose to such Investor Purchaser or Nordic any material non-public information giving rise to of the facts or circumstances regarding) an Allowed Delay, (b) advise the Investors applicable Holders in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the date of the Demand Registration Statement is first filed with Request (the 120th day if the SEC reviews the Registration Statement) or (y) a Shelf Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing Deadlinedate of the delivery of a Shelf Registration Request (the 120th day if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the Investor pursuant such Purchaser allocable to the applicable Purchase Agreement for the Registrable Securities included in such Registration Statement for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Period”).[should only cover shares requested to be registered] Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Purchaser in cash.
(ii) For not more than twenty ninety (2090) consecutive days or for a total of not more than forty-five one hundred and eighty (45180) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an InvestorPurchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Casablanca Mining Ltd.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-electronic mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously promptly thereafter provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 120th day after the Registration Statement is first filed with the SEC Closing Date, or (y) a Registration Statement covering Additional Shares the Registrable Securities is not declared effective by the SEC prior to within one hundred twenty (120) days following the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the time such Registration Statement will was required to be made or that the SEC has no further comments on the Registration Statement or (iifiled pursuant to Section 2(a)(iii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities first thirty (30) day period, and an amount equal to 1.0% of the aggregate amount invested by such Investor for each subsequent thirty (30-) day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Purchaser in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
(iii) Notwithstanding anything herein to the contrary, in no event will the Company be obligated to make payments to any Purchaser under Section 2(a)(ii) or Section 2(c)(i) in excess of 10% of the aggregate amount invested by such Purchaser.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with the SEC Closing Date, or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to within ninety (90) days following the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the time such Registration Statement will was required to be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadlinefiled pursuant to Section 2(a)(ii), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ exclusive monetary remedy for such events. For the avoidance of doubt and as an example only, but shall not affect in the right event that a Registration Statement covering US$100,000 of Ordinary Shares is declared effective three days after a deadline imposed in this Section 2(c)(i), the Investors to seek injunctive reliefCompany would be liable for liquidated damages in the amount of US$100.00. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, possible after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyfiling. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within 120 days following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within four (4) months following demand of the Required Holders relating to the earlier of Additional Registrable Securities to be covered thereby (i) five (5) Business Days after the SEC shall have informed the Company that no review each of the foregoing deadlines, a “Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate”), or (B) except as may be provided in subparagraph (c)(iii) below for an Allowed Delay, after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement)) but except as excused pursuant to subparagraph (iii) below, but excluding then the Company will issue to the Purchaser, as liquidated damages and not as a penalty, 1,333 shares of Common Stock per Unit purchased by the Purchaser for each 30 day calendar period during which any Allowed Delay of the events described in (as defined belowA) or (B) above occurs and is continuing (the inability “Blackout Period”). Each such issuance shall be made within five (5) days of any Investor to sell the end of each month of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall terminate upon the effectiveness of the applicable Registration Statement in the case of (A) and (B) above.
(ii) In the event that the Registrable Securities covered thereby due to market conditions(or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small-Cap Market, the Nasdaq OTC Bulletin Board, the New York Stock Exchange, the American Stock Exchange or otherwise publicly traded or trading of the Common Stock is suspended or halted thereon, within twenty (20) days following the Purchaser’s written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then the Company will make pro pro-rata payments to each Investor, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 2.02% of the sum of the aggregate Purchase Price paid by principal amount then outstanding under the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities Notes for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which such Registration Statement should have been effective any of the events described above occurs and is continuing (the “Blackout Noncompliance Period”). Such payments Each such payment shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right be due and payable within five (5) days of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day end of each month following the commencement (or ending portion thereof) of the Blackout Period until the termination of the Blackout Noncompliance Period. Such payments The Noncompliance Period shall be made to each Investor terminate upon (1) listing or inclusion and/or trading of the Registrable Securities on a public market or exchange in cashthe case of (A) above; and (2) delivery of such shares in the case of (B) above.
(iiiii) For not more than twenty (20) consecutive trading days or for a total of not more than forty-five (45) trading days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. No payments under subparagraph (c)(i) shall be required in the event and (c) use commercially reasonable efforts to terminate for the duration of an Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineAugust 15, 2015, or (B) after during the initial six month period following the date of this Agreement, a Registration Statement has been declared effective by the SEC, SEC but sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything herein to the contrary, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Mobivity Holdings Corp.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within three (3) months following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within three (3) months following the demand of an Investor relating to the earlier of (i) five (5) Business Days after Additional Registrable Securities covered thereby, or with respect to either a Registration Statement which is subject to full review by the SEC staff (which shall have informed not include a "plain English" review), within four (4) months following the Company that no review of Closing Date or demand, as the case may be (each, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions(or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange, then the Company will make pro pro-rata payments to each Investor, Investor as liquidated damages and not as a penalty, in an amount equal to 2.02% of the aggregate Purchase Price amount paid by such Investor on the Investor pursuant Closing Date to the applicable Purchase Agreement Company for the Registrable Securities shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"), provided, however, that in the case of the events described in (A) or (B) above with respect only to the Additional Registrable Securities, such penalty shall equal 2% of the aggregate market value of such Additional Registrable Securities for the duration of the Blackout Period. Each such payment shall be due and payable within five (5) days of the end of each month (or ending portion thereof) of the Blackout Period. Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ ' exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (x) the right effectiveness of the Investors to seek injunctive reliefapplicable Registration Statement in the case of (A) and (B) above; (y) listing or inclusion of the Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange in the case of (C) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Investors, in lawful money of the United States or in shares of Common Stock at the Market Price (as defined in the Purchase Agreement), and amounts payable as liquidated damages shall be paid monthly within three two (32) Business Days business days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Amounts payable as liquidated damages hereunder shall be made cease when an Investor no longer holds Warrants or Registrable Securities, or Additional Registrable Securities (or the right to each Investor in cashpotentially obtain Additional Registrable Securities), as applicable.
(ii) For not more than twenty ten (2010) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. The duration of the MFN Period provided for in the Purchase Agreement will be extended by the number of days of any and (c) use commercially reasonable efforts to terminate the all Blackout Periods, including any Allowed Delay as promptly as practicableDelays.
Appears in 1 contract
Sources: Purchase Agreement (Alpnet Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, possible after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyfiling. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within 120 days following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within four (4) months following demand of the Required Holders relating to the earlier of Additional Registrable Securities to be covered thereby (i) five (5) Business Days after the SEC shall have informed the Company that no review each of the foregoing deadlines, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) except as may be provided in subparagraph (c)(iii) below for an Allowed Delay, after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (iii) below, but excluding then the Company will issue to the Purchaser, as liquidated damages and not as a penalty, 4,166 shares of Common Stock per $50,000 of principal amount of the Notes purchased by the Purchaser for each 30 day calendar period during which any Allowed Delay of the events described in (as defined belowA) or (B) above occurs and is continuing (the inability "Blackout Period"). Each such issuance shall be made within five (5) days of any Investor to sell the end of each month of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall terminate upon the effectiveness of the applicable Registration Statement in the case of (A) and (B) above.
(ii) In the event that the Registrable Securities covered thereby due to market conditions(or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small-Cap Market, the Nasdaq OTC Bulletin Board, the New York Stock Exchange, the American Stock Exchange or otherwise publicly traded or trading of the Common Stock is suspended or halted thereon, within twenty (20) days following the issuance of such Underlying Shares, then the Company will make pro pro-rata payments to each Investor, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 2.01% of the sum of the aggregate Purchase Price paid by principal amount then outstanding under the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities Notes for each 30-30 day calendar period or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described above occurs and is continuing (the “Blackout "Noncompliance Period”"). Such payments Each such payment shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right be due and payable within five (5) days of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day end of each month following the commencement (or ending portion thereof) of the Blackout Period until the termination of the Blackout Noncompliance Period. Such payments The Noncompliance Period shall be made to each Investor in cashterminate upon listing or inclusion and/or trading of the Registrable Securities on a public market or exchange.
(iiiii) For not more than twenty (20) consecutive trading days or for a total of not more than forty-five (45) trading days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. No payments under subparagraph (c)(i) shall be required in the event and (c) use commercially reasonable efforts to terminate for the duration of an Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Sources: Registration Rights Agreement (Knockout Holdings, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within three (3) months following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within three (3) months following the demand of an Investor relating to the earlier of (i) five (5) Business Days after Additional Registrable Securities covered thereby, or with respect to either a Registration Statement which is subject to full review by the SEC staff (which shall have informed not include a "plain English" review), within four (4) months following the Company that no review of Closing Date or demand, as the case may be (each, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsspecifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.02% of the aggregate Purchase Price amount paid by such Investor on the Investor pursuant Closing Date to the applicable Purchase Agreement Company for the Registrable Securities shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"). Such payments shall constitute , provided, however, that in the Investors’ exclusive monetary remedy for such events, but shall not affect the right case of the Investors events described in (A) or (B) above with respect only to seek injunctive reliefthe Additional Registrable Securities, such penalty shall equal 2% of the aggregate market value of such Additional Registrable Securities for the duration of the Blackout Period. The amounts payable as liquidated damages pursuant to this paragraph Each such payment shall be paid monthly due and payable within three five (35) Business Days days of the last day end of each month following the commencement of the Blackout Period until the termination (or ending portion thereof) of the Blackout Period. Such payments shall be made in partial compensation to each Investor the Investors, and shall not constitute the Investors' exclusive remedy for such events. The Blackout Period shall terminate upon (x) the effectiveness of the applicable Registration Statement in cash.the case of (A) and (B)
(ii) For not more than twenty ten (2010) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. The duration of the MFN Period provided for in the Purchase Agreement will be extended by the number of days of any and (c) use commercially reasonable efforts to terminate the all Allowed Delay as promptly as practicableDelays.
Appears in 1 contract
Sources: Registration Rights Agreement (Interleukin Genetics Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicablepracticable after the filing thereof. The Company shall respond promptly to any and all comments made by the staff of the SEC on such Registration Statement, and shall submit to the SEC, within two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) Business Days after the submission of such requests. The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any the Registration Statement is declared effective and shall simultaneously provide the Investors Investor with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a such Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 60th day after the Additional Shares Filing Deadline, Deadline or (B) after a such Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to if such Registration Statement for is not available to cover any reason (including, without limitation, sales of Registrable Securities registered by such Registration Statement including by reason of a stop order, order or the Company’s failure to update the such Registration Statement), but excluding other than as a result of any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions), then the Company will make pro rata payments to each Investorthe Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price paid Conversion Amount of the Registrable Securities then held by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ Investor’s exclusive monetary remedy for such events, but shall not affect the right of the Investors Investor to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each the Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days (which need not be consecutive) in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each the Investor then holding Registrable Securities in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an the Investor) disclose to such the Investor any material non-public nonpublic information giving rise to an Allowed Delay, (b) advise the Investors Investor then holding Registrable Securities in writing to cease all sales under the such Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Argos Therapeutics Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, practicable after any Registration Statement it is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection filed with the sale or other disposition of the securities covered therebySEC. If (A)(xA) the Company fails to file with the SEC a Registration Statement on or before the date by which the Company is required to file the Registration Statement pursuant to Section 2(a)(i) above, (B) the Company fails to file with the SEC the Registration Statement covering Additional Registrable Securities within thirty (30) days following demand of the Purchaser relating to the Additional Registrable Securities to be covered thereby, (C) the Registration Statement covering Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after following the Registration Statement is first filed with Closing Date, or the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within ninety (90) days following demand of the Purchaser relating to the earlier Additional Registrable Securities to be covered thereby, provided that for either of (i) five (5) Business Days after such Registration Statements which is subject to review by the SEC staff (which shall have informed not include a review which is primarily a "plain English" review), such effective date shall be within one hundred twenty (120) days following the Company that no review Closing Date (in the case of the Registration Statement will be made required by Section 2(a)(i)) or that one hundred twenty (120) days following demand (in the SEC has no further comments on the case of a Registration Statement or required by Section 2(a)(ii)) (ii) the one hundred twentieth each, a "Registration Date"), (120th) day after the Additional Shares Filing Deadline, or (BD) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowE) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the Nasdaq, the Nasdaq Small Cap, the NYSE or the AMEX (each an "Approved Market"), or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the principal market for the Common Stock, or (F) the Company fails, refuses or is otherwise unable timely to market conditionsissue Underlying Shares upon conversion of the Note or Warrant Shares upon exercise of the Warrants in accordance with the terms of the Note and the Warrants, or certificates therefor as required under the Transaction Documents, then the Company will make pro rata payments to each Investor, the Purchaser as partial liquidated damages for the minimum amount of damages to the Purchaser by reason thereof, and not as a penalty, in an at the rate of 2% per month of the sum of (x) the outstanding principal amount equal of, and accrued interest on, the Note held at such time by the Purchaser plus (y) the product of (i) the average of the daily VWAPs for all of the Trading Days during the particular portion of a Blackout Period for which such computation is being made times (ii) the number of Registrable Securities issued to 2.0% and held by the Purchaser plus (z) the amount, if any, by which the product of (i) the average of the daily VWAPs for all of the Trading Days during the particular portion of the Blackout Period for which such computation is being made times (ii) the number of Warrant Shares issuable upon exercise of the unexercised portion of the Warrants held at such time by the Purchaser exceeds the aggregate Purchase Price paid of the number of Warrant Shares issuable upon exercise of the unexercised portion of the Warrants held at such time by the Investor pursuant to the applicable Purchase Agreement Purchaser, for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in clause (A), (B), (C), (D), (E) or (F) above occurs and is continuing (the “"Blackout Period”"). Each such payment shall be due and payable within five (5) days after the end of each calendar month of the Blackout Period until the termination of the Blackout Period and within five (5) days after such termination. Such payments shall be in partial compensation to the Purchaser, and shall not constitute the Investors’ Purchaser's exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (v) the right filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (E) above; (y) delivery of such shares or certificates in the case of clause (F) above; and (z) in the case of the events described in clauses (C) or (D) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days payable, at the option of the last day of each month following the commencement Purchaser, in lawful money of the Blackout Period until United States or in shares of Common Stock valued for this purpose at the termination lower of the Blackout PeriodConversion Price or the Computed Market Price. Such payments Amounts payable as liquidated damages hereunder shall be made to each Investor in cashcease when the Purchaser no longer holds the Note, the Warrants, Registrable Securities or Additional Registrable Securities.
(ii) For not more than twenty five (205) consecutive days Trading Days or for a total of not more than forty-five twenty (4520) days Trading Days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which information at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement would be unduly detrimental to the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Company's affairs (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Purchaser in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) the Purchaser, shall the Company disclose to such Investor the Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchaser in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Holders by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Holders with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Holder to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorHolder, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase product of the Exercise Price paid by (as defined in the Investor pursuant to Warrants) and the applicable Purchase Agreement for the Registrable Securities number of Warrant Shares for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the InvestorsHolders’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Holders to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Holder in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Holder in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investora Holder) disclose to such Investor Holder any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Holders in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within four (4) months following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within four (4) months following demand of a Purchaser relating to the earlier of Additional Registrable Securities to be covered thereby (i) five (5) Business Days after the SEC shall have informed the Company that no review each of the foregoing deadlines, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, order or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities) after issuance and registration specifically are not listed or included for quotation on the Nasdaq National Market, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange (each, an "Approved Market") or trading of the Common Stock is suspended or halted thereon for more than one Trading Day, or (D) the Company fails, refuses or is otherwise unable to market conditionstimely issue Underlying Shares upon conversion of Notes or Warrant Shares upon exercise of the Warrants in accordance with the terms of the Notes and Warrants, respectively, or issue unlegended (after effective registration of the Registrable Securities) certificates as required under the Agreements, in each case within five (5) days following the Purchaser's written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then the Company will make pro pro-rata payments to each Investor, Purchaser as liquidated damages and not as a penalty, in an amount equal to 2.02% of the sum of the aggregate Purchase Price amount paid by such Purchaser on the Investor pursuant Closing Date to the applicable Purchase Agreement Company for the Notes still held by such Purchaser and the aggregate market value of Registrable Securities held by such Purchaser for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which any of the events described in (A), (B), (C) or (D) above occurs and is continuing (the "Blackout Period"). Each such payment shall be due and payable within five (5) days of the end of each month (or ending portion thereof) of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall terminate upon (w) the effectiveness of the applicable Registration Statement should have been effective in the case of (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right A) and (B) above; (x) listing or inclusion and/or trading of the Investors to seek injunctive reliefCommon Stock on an Approved Market in the case of (C) above; (y) delivery of such shares in the case of (D) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Purchasers, in lawful money of the United States or in shares of Common Stock at the lower of the Conversion Price or Market Price (as defined in the Notes), and amounts payable as liquidated damages shall be paid monthly within three five (35) Business Days business days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Amounts payable as liquidated damages hereunder shall cease when a Purchaser no longer holds Notes, Warrants, Registrable Securities or Additional Registrable Securities, as applicable. The Company shall submit to the SEC, within two (2) business days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than 48 hours after the submission of such request. The Company acknowledges that any failure, refusal or inability by the Company to perform the obligations described in the foregoing clauses (A) through (D) will cause the Purchasers to suffer damages in an amount that will be difficult to ascertain, including without limitation damages resulting from the loss of liquidity in the Registrable Securities and the additional investment risk in holding the Registrable Securities. Accordingly, the parties agree, after consulting with counsel, that it is appropriate to include in this Agreement the foregoing provisions for payments of liquidated damages in order to compensate the Purchasers for such damages. The parties acknowledge and agree that such payments set forth above represent the parties' good faith effort to quantify such damages and, as such, agree that the form and amount of such payments are reasonable and will not constitute a penalty. Such payments provided for above are in addition to and not in lieu or limitation of any other rights the Purchasers may have at law, in equity or under the terms of the Agreements including without limitation the right to specific performance. Each Purchaser shall be made entitled to each Investor specific performance of any and all obligations of the Company in cashconnection with the registration rights of the Purchasers hereunder.
(ii) For not more than twenty ten (2010) consecutive trading days or for a total of not more than forty-five forty (4540) calendar days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, Company by terminating or suspending effectiveness of any registration contemplated by this Section the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company Company, provided that any such suspension or (B) amend termination may not occur within ten trading days following a prior suspension or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading termination (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Sources: Registration Rights Agreement (Genome Therapeutics Corp)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within three (3) months following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within three (3) months following the demand of an Investor relating to the earlier of (i) five (5) Business Days after Additional Registrable Securities covered thereby, or with respect to either a Registration Statement which is subject to full review by the SEC staff (which shall have informed not include a "plain English" review), within four (4) months following the Company that no review of Closing Date or demand, as the case may be (each, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsspecifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.02% of the aggregate Purchase Price amount paid by such Investor on the Investor pursuant Closing Date to the applicable Purchase Agreement Company for the Registrable Securities shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"). Such payments shall constitute , provided, however, that in the Investors’ exclusive monetary remedy for such events, but shall not affect the right case of the Investors events described in (A) or (B) above with respect only to seek injunctive reliefthe Additional Registrable Securities, such penalty shall equal 2% of the aggregate market value of such Additional Registrable Securities for the duration of the Blackout Period. The amounts payable as liquidated damages pursuant to this paragraph Each such payment shall be paid monthly due and payable within three five (35) Business Days days of the last day end of each month following the commencement of the Blackout Period until the termination (or ending portion thereof) of the Blackout Period. Such payments shall be made in partial compensation to each Investor the Investors, and shall not constitute the Investors' exclusive remedy for such events. The Blackout Period shall terminate upon (x) the effectiveness of the applicable Registration Statement in cash.the
(ii) For not more than twenty ten (2010) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. The duration of the MFN Period provided for in the Purchase Agreement will be extended by the number of days of any and (c) use commercially reasonable efforts to terminate the all Allowed Delay as promptly as practicableDelays.
Appears in 1 contract
Sources: Registration Rights Agreement (Interleukin Genetics Inc)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five ten (510) Business Days after the SEC shall have informed has notified the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with Filing Deadline or the SEC or Dismissal Deadline (if applicable), (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of within ninety (i90) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day days after the Additional Shares Filing Deadline or (z) a Shelf Registration Statement is not declared effective by the SEC within ninety (90) days after the Qualification Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of after the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashcash or in additional shares of Common Stock as determined by each Investor.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Purchasers and the Placement Agent in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser and the Placement Agent, shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers and the Placement Agent in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Immune Response Corp)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with the SEC Closing Date, or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the Trigger Date relating to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadlinecovered thereby, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason either because (includingi) a post-effective amendment relating to the Registration Statement has either not been filed with the SEC or been declared effective by the SEC, without limitation, by reason (ii) the Registration Statement is the subject of a pending or threatened stop order, (iii) the Company has suspended the use of such Registration Statement or Prospectus pursuant to this Agreement and such suspension has not been lifted, or (iv) the Company’s failure to update use of the Registration Statement)Statement or any related Prospectus would require that the information contained or incorporated therein be amended, supplemented or updated and the Company has not provided the SSF Investors with an amended, supplemented or updated Registration Statement or Prospectus which, if applicable, has been declared effective by the SEC and which may be used to effect sales, but excluding any Allowed Delay (as defined below) or the inability of any SSF Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each SSF Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by such SSF Investor (or, in the Investor pursuant case of a Registration Statement covering resale of any Additional Shares, 1.5% of the aggregate exercise price of the Antidilution Warrants giving rise to the applicable Purchase Agreement for the Registrable Securities such obligation) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). Such payments shall be in partial compensation to the SSF Investors, and shall not constitute the SSF Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each SSF Investor in cash.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend delay the disclosure of material nonpublic information concerning the Company, by suspending the use of any Prospectus included in any Registration Statement registration contemplated by this Section in the event that the Company determines in good faith that containing such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Companyinformation, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) Investor and an effective confidentiality agreement, shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Sources: Registration Rights Agreement (Onyx Software Corp/Wa)
Effectiveness. (i) The Company shall use commercially its reasonable best efforts to have the Initial Registration Statement and any amendment declared effective as soon as practicableby the SEC at the earliest possible date but no later than the earlier of (A) the one hundredth (100th) calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement, and (B) the earlier of (i) the thirtieth (30th) calendar day following the initial filing date of the Initial Registration Statement, and (iii) the fifth (5th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review. The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, hours after any the Initial Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors Investor with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use commercially reasonable efforts to keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Registrable Securities is not declared effective Act and available for the resale by the SEC prior to the earlier Investors of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earliest to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (x) the Investor pursuant to date on which the applicable Purchase Agreement for Investors shall have resold all the Registrable Securities for each 30-day period or pro rata for any portion thereof following covered thereby; and (y) the date by which such Registration Statement should have been effective the Shares and any Common Stock issued or issuable with respect to the Shares cease to be Registrable Securities (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events; provided, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary shall not be obligated to (A) delay update the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Initial Registration Statement or and no sales may made under the related Prospectus so that such Initial Registration Statement during any Allowed Delay. The Initial Registration Statement (including any amendments or Prospectus supplements thereto and prospectuses contained therein) shall not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Replimune Group, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement Statements declared effective as soon as practicable. Moreover, the Company shall use commercially reasonable efforts to have the SEC declare any such Registration Statements effective no later than 4:00 pm (ET) on the date that such Registration Statement is so declared effective. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC reviews such Registration Statement), or (y) a Shelf Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineQualification Deadline (the 120th day if the SEC reviews such Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorInvestor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the such Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Aveo Pharmaceuticals Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, practicable after any Registration Statement it is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection filed with the sale or other disposition of the securities covered therebySEC. If (A)(xA) the Company fails to file with the SEC a Registration Statement on or before the date by which the Company is required to file the Registration Statement pursuant to Section 2(a)(i) above, (B) the Company fails to file with the SEC the Registration Statement covering Additional Registrable Securities within sixty (60) days following demand of the Purchaser relating to the Additional Registrable Securities to be covered thereby, (C) the Registration Statement covering Registrable Securities is not declared effective by the SEC prior to the earlier of within one hundred and twenty (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90120) days after following the Registration Statement is first filed with Closing Date, or the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within one hundred and twenty (120) days following demand of the Purchaser relating to the earlier of Additional Registrable Securities to be covered thereby (i) five each, a "Registration Date"), (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (BD) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowE) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the OTC Bulletin Board, the Nasdaq, the Nasdaq Small Cap, the NYSE or the AMEX (each an "Approved Market"), or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the principal market for the Common Stock, or (F) the Company fails, refuses or is otherwise unable timely to market conditionsissue Underlying Shares upon conversion of the Note or Warrant Shares upon exercise of the Warrant in accordance with the terms of the Note and the Warrant, or certificates therefor as required under the Transaction Documents, then the Company will make pro rata payments to each Investor, the Purchaser as partial liquidated damages for the minimum amount of damages to the Purchaser by reason thereof, and not as a penalty, in an amount equal to 2.0% at the rate of (1) one percent (1%) of the aggregate Purchase Price purchase price of the Note and the Warrant paid by the Investor Purchaser pursuant to the applicable Purchase Agreement for the Registrable Securities first thirty (30) day period, and (2) two percent (2%) of the purchase price of the Note and the Warrant paid by the Purchaser pursuant to the Purchase Agreement for the each thirty (30-) day period or thereafter (pro rata rated for any portion thereof period less than thirty (30) days), following the date by Registration Date during which such Registration Statement should have been effective any of the events described in clause (A), (B), (C), (D), (E) or (F) above occurs and is continuing (the “"Blackout Period”"). Each such payment shall be due and payable within five (5) days after the end of each calendar month of the Blackout Period until the termination of the Blackout Period and within five (5) days after such termination. Such payments shall be in partial compensation to the Purchaser, and shall not constitute the Investors’ Purchaser's exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (v) the right filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (E) above; (y) delivery of such shares or certificates in the case of clause (F) above; and (z) in the case of the events described in clauses (C) or (D) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days payable, at the option of the last day of each month following the commencement Purchaser, in lawful money of the Blackout Period until United States or in shares of Common Stock valued for this purpose at the termination of Conversion Price. Amounts payable as liquidated damages hereunder shall cease when the Blackout Period. Such payments shall be made to each Investor in cashPurchaser no longer holds the Note, the Warrant, Registrable Securities or Additional Registrable Securities.
(ii) For not more than twenty five (205) consecutive days Trading Days or for a total of not more than forty-five twenty (4520) days Trading Days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which information at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement would be unduly detrimental to the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Company's affairs (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Purchaser in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) the Purchaser, shall the Company disclose to such Investor the Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchaser in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Sources: Registration Rights Agreement (Knightsbridge Fine Wines Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement (including the Secondary Offering Registration Statement if the resale of the Registrable Securities by the Purchasers may be registered on such Secondary Offering Registration Statement under the rules and regulations promulgated under the ▇▇▇▇ ▇▇▇) declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, possible after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyfiling. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within the earlier of (ix) five seven (57) Business Days after months following the Closing Date, (y) three (3) months following the Filing Date if the Secondary Offering is abandoned or significantly postponed or delayed, or the terms or manner of such offering are materially changed, and (z) the fifth (5th) day following the date on which the Company is notified by the SEC shall have informed the Company that no review of the such Registration Statement will not be made reviewed or that is no longer subject to further review and comments, or the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within three (3) months following demand of a Purchaser relating to the earlier of Additional Registrable Securities to be covered thereby (i) five (5) Business Days after or the fifth day following the date on which the Company is notified by the SEC shall have informed the Company that no review of the such Registration Statement will not be made reviewed or that is no longer subject to further review and comments) (each of the SEC has no further comments on the foregoing deadlines, a “Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowC) or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small-Cap Market, the New York Stock Exchange, the American Stock Exchange or the OTC Bulletin Board (each an “Approved Market”) or trading of the Common Stock is suspended or halted thereon, or (D) the Company fails, refuses or is otherwise unable to market conditionstimely issue Underlying Shares upon conversion of the Notes or Warrant Shares upon exercise of the Warrants, in accordance with the terms of the Notes and Warrants, or unlegended certificates for the Underlying Shares or Warrant Shares as required under the Agreements, in each case within ten (10) days following the Purchaser’s written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then the Company will make pro pro-rata payments to each Investor, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 2.02% of the sum of the aggregate Purchase Price paid by principal amount then outstanding under the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities Notes for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A), (B), (C) or (D) above occurs and is continuing (the “Blackout Period”). Such payments shall constitute , provided that such liquidated damages, when combined with the Investors’ exclusive monetary remedy for such eventsother liquidated damages hereunder, but shall not affect exceed 36% in the right aggregate. Each such payment shall be due and payable within five (5) days of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day end of each month following the commencement (or ending portion thereof) of the Blackout Period until the termination of the Blackout Period. Such payments shall be made in partial compensation to each Investor the Purchasers, and shall not constitute the Purchasers’ exclusive remedy for such events. The Blackout Period shall terminate upon (x) the effectiveness of the applicable Registration Statement in cashthe case of (A) and (B) above; (y) listing or inclusion and/or trading of the Registrable Securities on an Approved Market in the case of (C) above; and (z) delivery of such shares in the case of (D) above. The amounts payable as liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States.
(ii) For not more than twenty five (205) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Sources: Purchase Agreement (Hq Sustainable Maritime Industries, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, practicable after any Registration Statement it is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection filed with the sale or other disposition of the securities covered therebySEC. If (A)(xA) the Company fails to file with the SEC a Registration Statement on or before the date by which the Company is required to file the Registration Statement pursuant to Section 2(a)(i) above, (B) the Company fails to file with the SEC the Registration Statement covering Additional Registrable Securities within thirty (30) days following demand of the Purchaser relating to the Additional Registrable Securities to be covered thereby, (C) the Registration Statement covering Registrable Securities is not declared effective by the SEC prior to the earlier of within one hundred and twenty (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90120) days after following the Registration Statement is first filed with Closing Date, or the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within one hundred and twenty (120) days following demand of the Purchaser relating to the earlier of Additional Registrable Securities to be covered thereby (i) five each, a "Registration Date"), (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (BD) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowE) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the OTC Bulletin Board, the Nasdaq, the Nasdaq Small Cap, the NYSE or the AMEX (each an "Approved Market"), or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the principal market for the Common Stock, or (F) the Company fails, refuses or is otherwise unable timely to market conditionsissue Underlying Shares upon conversion of the Shares or Warrant Shares upon exercise of the Warrant in accordance with the terms of the Certificate of Designation and the Warrant, or certificates therefor as required under the Transaction Documents, then the Company will make pro rata payments to each Investor, the Purchaser as partial liquidated damages for the minimum amount of damages to the Purchaser by reason thereof, and not as a penalty, in an amount equal to 2.0% at the rate of (1) one percent (1%) of the aggregate Purchase Price purchase price of the Shares and the Warrant paid by the Investor Purchaser pursuant to the applicable Purchase Agreement for the Registrable Securities first thirty (30) day period, and (2) two percent (2%) of the purchase price of the Shares and the Warrant paid by the Purchaser pursuant to the Purchase Agreement for the each thirty (30-) day period or thereafter (pro rata rated for any portion thereof period less than thirty (30) days), following the date by Registration Date during which such Registration Statement should have been effective any of the events described in clause (A), (B), (C), (D), (E) or (F) above occurs and is continuing (the “"Blackout Period”"). Each such payment shall be due and payable within five (5) days after the end of each calendar month of the Blackout Period until the termination of the Blackout Period and within five (5) days after such termination. Such payments shall be in partial compensation to the Purchaser, and shall not constitute the Investors’ Purchaser's exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (v) the right filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (E) above; (y) delivery of such shares or certificates in the case of clause (F) above; and (z) in the case of the events described in clauses (C) or (D) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days payable, at the option of the last day of each month following the commencement Purchaser, in lawful money of the Blackout Period until United States or in shares of Common Stock valued for this purpose at the termination of Conversion Price. Amounts payable as liquidated damages hereunder shall cease when the Blackout Period. Such payments shall be made to each Investor in cashPurchaser no longer holds any Shares, the Warrant, Registrable Securities or Additional Registrable Securities.
(ii) For not more than twenty five (205) consecutive days Trading Days or for a total of not more than forty-five twenty (4520) days Trading Days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which information at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement would be unduly detrimental to the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading Company's affairs (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Purchaser in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) the Purchaser, shall the Company disclose to such Investor the Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchaser in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the cause each Registration Statement to be declared effective by the SEC as soon as practicablepracticable (including filing with the SEC a request for acceleration of its effectiveness in accordance with Rule 461 within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the staff of the SEC that such Registration Statement will not be reviewed, or not be subject to further review), with respect to the initial Registration Statement filed pursuant to Section 2(a) hereof, but in any event no later than one hundred and twenty (120) days after filing. The Company shall notify the Investors applicable Affiliated Holders by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors applicable Affiliated Holders with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If .
(A)(xii) The Affiliated Holders hereby acknowledge that there may occasionally be times when the Company must suspend the use of a Prospectus until such time as an amendment to the related Registration Statement covering has been filed by the Registrable Securities is not Company and declared effective by the SEC prior or until the Company has amended or supplemented such Prospectus. Each Affiliated Holder hereby covenants that it will not sell any securities pursuant to any Prospectus during the period commencing at the time at which the Company gives such Affiliated Holder notice of the suspension of the use of such Prospectus and ending at the time the Company gives such Affiliated Holder notice that such Affiliated Holder may thereafter effect sales pursuant to such Prospectus. Notwithstanding anything herein to the earlier contrary, the Company shall not suspend use of any Registration Statement by any Affiliated Holder unless in the good faith determination of the Company such suspension is required by federal securities laws, including without limitation, the rules and regulations promulgated thereunder; provided, however, that (i) five except as otherwise provided by clause (5ii) Business Days after below, in the SEC shall have informed event that such suspension is required by the Company that no review of the Registration Statement will be made need for an amendment or that the SEC has no further comments on the supplement to a Registration Statement or a related Prospectus, the Company shall promptly file such required amendments or supplements as shall be necessary for the disposition of the Registrable Securities to recommence and (ii) ninety (90) days after if the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier board of (i) five (5) Business Days after the SEC shall have informed directors of the Company has determined in good faith that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after offers and sales pursuant to a Registration Statement has been declared effective by the SEC, sales canProspectus should not be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in the related Registration Statement would be premature or would have a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then material adverse effect on the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodits business, the Company may suspend the use of such Prospectus and defer the filing of any Prospectus included in any Registration Statement contemplated by this Section in required amendment or supplement for the event that the Company determines in good faith that such suspension is minimum period of time necessary to (A) delay the disclosure of avoid such material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading adverse effect (an “Allowed Delay”); provided, further, that in the case of clause (ii) above, the Company shall promptly not be entitled to exercise its right to block such sales or suspend use of a Prospectus more than three times (anot to exceed thirty (30) notify each Investor in writing days each) during the effectiveness of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the related Registration Statement until the end nor more than a total of the Allowed Delay and thirty (c30) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicabledays in any twelve (12)-month period.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within three (3) months following the earlier of (i) five (5) Business Days after Closing Date or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within three (3) months following the demand of an Investor relating to the earlier Additional Registrable Securities covered thereby, or with respect to any of (i) five (5) Business Days after the foregoing a Registration Statement which is subject to full review by the SEC staff (which shall have informed not include a mere "plain English" review), within four (4) months following the Company that no review of Closing Date or demand, as the case may be (each, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsspecifically are not listed or included for quotation on the American Stock Exchange, the Nasdaq National Market System, the Nasdaq Small Cap Market, or the New York Stock Exchange then the Company will make pro rata payments to each Investor, as liquidated damages (the "Liquidated Damages Payments") and not as a penalty, in an amount equal to 2.02% of the aggregate Purchase Price amount paid by such Investor on the Investor pursuant Closing Date to the applicable Purchase Agreement Company for the Registrable Securities shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"). Such payments shall constitute , provided, however, that in the Investors’ exclusive monetary remedy for such events, but shall not affect the right case of the Investors events described in (A) or (B) above with respect only to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph the Additional Registrable Securities, such penalty shall be paid monthly within three (3) Business Days equal 2% of the last day aggregate market value of each month following such Additional Registrable Securities for the commencement of the Blackout Period until the termination duration of the Blackout Period. Such payments Each such payment shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-due and payable within five (455) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and each month (cor ending portion thereof) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.of the
Appears in 1 contract
Sources: Registration Rights Agreement (Sheffield Pharmaceuticals Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, practicable after any Registration Statement it is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection filed with the sale or other disposition of the securities covered therebySEC. If (A)(xA) the Company fails to file with the SEC a Registration Statement in accordance with all of the requirements of this Agreement on or before the date by which the Company is required to file the Registration Statement pursuant to Section 2(a)(i) above, (B) the Company fails to file with the SEC the Registration Statement covering the Additional Registrable Securities is not declared effective by in accordance with all of the requirements of this Agreement within 30 days following demand of the Holder relating to the Additional Registrable Securities to be covered thereby, (C) the Company fails to file with the SEC prior a request for acceleration of effectiveness of a Registration Statement to a time and date not more than 48 hours after the earlier submission of (i) five (5) Business such request, within three Trading Days after the SEC shall have informed date the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement or Statement, as the case may be, (iiD) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior to the earlier of within 75 days (i) five (5) Business Days after or 105 days in case the SEC shall have informed staff reviews such Registration Statement) following the Company that no review of Closing Date, or the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been covering additional Registrable Securities is not declared effective by the SEC, sales cannot be made pursuant to SEC within 75 days (or 105 days in case the SEC staff reviews such Registration Statement for any reason (including, without limitation, by reason of Statement) following the date on which a stop orderRegistration Insufficiency Event occurs, or the Company’s failure to update Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within 75 days (or 105 days in case the SEC staff reviews such Registration Statement), but excluding any Allowed Delay (as defined below) or following demand of the inability of any Investor Holder relating to sell the Additional Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.covered thereby,
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicablereasonably practicable after filing, but in no event later than the Registration Deadline. The Company shall respond promptly to any and all comments made by the staff of the Commission on the Registration Statement, and shall submit to the Commission, with two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the Commission or that the staff of the Commission has no further comments on the Registration Statement, as the case may be, a request for acceleration of the effectiveness of the Registration Statement to a time and date not later than two (2) Business Days after the submission of such request. The Company shall notify the Investors by facsimile or e-mail as promptly as reasonably practicable, and in any event, within twenty-four (24) hours, after any the Registration Statement is declared effective and shall simultaneously provide or make available to the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If If, subject to Section 2(d) hereof, (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 60th day after the Additional Shares Initial Filing DeadlineDeadline (the 90th day if the SEC reviews the Registration Statement), or (B) after a the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby solely due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute , until such time as the Investors’ exclusive monetary remedy for such events, but shall not affect the right Registrable Securities (giving effect to and assuming a net exercise of the Investors Warrant by the Investor) may be sold without volume limitations pursuant to seek injunctive reliefRule 144. Any such payment shall be in addition to any other remedies available to the Investor at law or in equity, whether pursuant to the terms hereof, the Purchase Agreement, the Certificate of Designation, or otherwise. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty sixty (20) consecutive days or for a total of not more than forty-five (4560) days (which need not be consecutive days) in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable. Notwithstanding the provisions of this Section, if an Allowed Delay is not in connection with the review by the SEC of a Registration Statement or the financial statements contained therein, such Allowed Delay shall not be for a period exceeding twenty (20) consecutive days. Although an Allowed Delay would not be a breach of this Agreement, liquidated damages would accrue during such Allowed Delay pursuant to Section 2(c)(i).
Appears in 1 contract
Sources: Registration Rights Agreement (Adamis Pharmaceuticals Corp)
Effectiveness. (i) The In the event that the Company is not a WKSI, the Company shall use commercially reasonable efforts to have the each Registration Statement declared effective as soon as practicablepracticable after such Registration Statement has been filed with the SEC, but no later than the earlier of (i) the 90th calendar day (or 120th calendar day if the SEC notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 5th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review. By 5:30 p.m. (Eastern time) on the second Business Day following the date on which the Registration Statement is declared effective by the SEC, the Company shall file with the SEC, in accordance with Rule 424 under the Securities Act, the final prospectus to be used in connection with sales pursuant to such Registration Statement. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, event within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty thirty (2030) consecutive days or days, and for a total of not more than forty-five sixty (4560) days total days, in each case, in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public nonpublic information giving rise to an such Allowed Delay, (b) advise the Investors in writing to cease all sales under the such Registration Statement until the end of the such Allowed Delay and Delay, (c) use commercially reasonable efforts to terminate the such Allowed Delay as promptly as practicablepracticable and (d) notify each Investor in writing when such Allowed Delay is terminated.
Appears in 1 contract
Sources: Registration Rights Agreement (Pacific Biosciences of California, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 120th day after the Additional Shares Filing Deadline, Closing Date; or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay or Rule 415 Cutback (each as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% 1.5%, of the aggregate Purchase Price purchase price paid by such Investor under the Investor pursuant to Subscription Agreement and the applicable Note Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). The total amount of liquidated damages to be paid for such Blackout Period shall not exceed 8.0% of the aggregate purchase price paid by such Investor under the Subscription Agreement and the Note Purchase Agreement. Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that (A) the representative of the underwriters of an underwritten offering of primary shares by the Company has advised the Company that the offer or sale of shares of Common Stock under the Registration Statement would have a material adverse effect on such underwritten offering of primary shares; (B) a majority of the independent members of the Company’s board of directors determines in good faith that (i) the offer or sale of any shares of Common Stock under the Registration Statement would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving us, (ii) upon the advice of counsel, the sale of such suspension is necessary shares pursuant to (A) delay the Registration Statement would require disclosure of material non-public material information concerning not otherwise required to be disclosed under applicable law, and (iii) either (x) the Company, Company has a bona fide business purpose for preserving the disclosure of which at the time is not, in the good faith opinion confidentiality of the Companyproposed transaction or information, in the best interests of or (y) disclosure would have a material adverse effect on the Company or the Company’s ability to consummate the proposed transaction, in each case under circumstances that would make it impractical or inadvisable to cause the Registration Statement (Bor such filings) to become effective or to promptly amend or supplement the affected Registration Statement on a post-effective basis, as applicable; or (C) a majority of the independent members of the Company’s board of directors determines in good faith, upon the advice of counsel, that the Company is required by law, rule or regulation, or that it is in the Company’s best interests, to supplement the Registration Statement or file a post-effective amendment to the Registration Statement in order to incorporate information into the Registration Statement for the purpose of: (i) including in the Registration Statement any prospectus required under Section 10(a)(3) of the Securities Act; (ii) reflecting in the Prospectus included in the Registration Statement any facts or events arising after the effective date of the Registration Statement in the Prospectus (or of the most-recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus; (iii) correcting any misstatement or omission in the Registration Statement or the related Prospectus so that such included therein; or (iv) including in the Prospectus included in the Registration Statement any material information with respect to the plan of distribution not disclosed in the Registration Statement or Prospectus shall not include an untrue statement of a any material fact or omit change to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading such information (an “Allowed Delay”); provided, provided that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Integrity Applications, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicablereasonably practicable after filing, but in no event later than the Registration Deadline. The Company shall respond promptly to any and all comments made by the staff of the Commission on the Registration Statement, and shall submit to the Commission, with two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the Commission or that the staff of the Commission has no further comments on the Registration Statement, as the case may be, a request for acceleration of the effectiveness of the Registration Statement to a time and date not later than two (2) Business Days after the submission of such request. The Company shall notify the Investors by facsimile or e-mail as promptly as reasonably practicable, and in any event, within twenty-four (24) hours, after any the Registration Statement is declared effective and shall simultaneously provide or make available to the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If If, subject to Section 2(d) hereof, (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Statement, or (ii) the one hundred twentieth (120th) 60th day after the Additional Shares Initial Filing DeadlineDeadline (the 90th day if the SEC reviews the Registration Statement), or (B) after a the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby solely due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute , until such time as the Investors’ exclusive monetary remedy for such events, but shall not affect the right Registrable Securities (giving effect to and assuming a net exercise of the Investors Warrant by the Investor) may be sold without volume limitations pursuant to seek injunctive reliefRule 144. Any such payment shall be in addition to any other remedies available to the Investor at law or in equity, whether pursuant to the terms hereof, the Purchase Agreement, the Certificate of Designation, or otherwise. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Adamis Pharmaceuticals Corp)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicablewithin one-hundred twenty (120) days of the Closing Date (one hundred fifty (150) days in the event the Commission shall provide any comments to the Registration Statement) (the “Effectiveness Deadline”). The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four two (242) hoursTrading Days, after any Registration Statement is declared effective and and, if requested, shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC Commission prior to the earlier of (i) five (5) Business Trading Days after the SEC Commission shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC Commission has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineEffectiveness Deadline date, or (B) after a Registration Statement has been declared effective by the SECCommission, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions), then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.00.5% of the aggregate Purchase Price paid amount invested by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities such Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three ten (310) Business Days days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall expire upon the declaration of effectiveness by the Commission of the Registration Statement (if the Blackout Period is covered by clause (A) of this Section 2(c)(i)) or the date on which sales pursuant to the Registration Statement may resume (if the Blackout Period is covered by clause (B) of this Section 2(c)(i)). Such payments shall be made to each Investor Purchaser in cashcash no later than ten (10) days after the end of each 30-day period. Notwithstanding anything else to the contrary contained herein, liquidated damages, if any, payable pursuant to this Section 2(c) shall cease to accrue after the date that is six (6) months after the Closing Date.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading, or (C) to file a post-effective amendment to such Registration Statement to comply with the undertakings required by Item 512(a) of Regulation S-K (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investora Purchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable. The provisions of Section 3(d) will not be applicable during the period of any Allowed Delay.
Appears in 1 contract
Sources: Registration Rights Agreement (HII Technologies, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC or reviews the Registration Statement), (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (120 days if the earlier of SEC reviews the Registration Statement) or (iz) five a Shelf Registration Statement is not declared effective by the SEC within ninety (590) Business Days days after the Qualification Deadline (120 days if the SEC shall have informed the Company that no review of reviews the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineStatement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with the SEC or Closing Date, (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) or (z) a Shelf Registration Statement is not declared effective by the earlier of SEC within ninety (i90) five (5) Business Days days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Qualification Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). Such payments shall constitute the Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall will use its commercially reasonable efforts to have the such Registration Statement declared effective by the Commission within 60 days of the File Date, provided, however, that the Company will not be obligated to effect such a registration under the Securities Act if the Company furnishes to the holders of the Registrable Stock (as soon defined above) a certificate signed by the President of the Company stating that in the good faith judgment of the Company's Board of Directors, after consultation with the Company's counsel (i) the offering would interfere in any material respect with any financing, acquisition, corporate reorganization or other material transaction under consideration by the Company or (ii) there is some other material development relating to the condition (financial or other) of the Company that has not been disclosed to the general public and as practicable. The Company shall notify to which it is in the Company's best interests and lawful not to disclose such development, it being hereby acknowledged and agreed by the Investors that transmittal of such information pursuant to either (i) or (ii) of this paragraph will be kept confidential by facsimile the Investors and may prevent the Investors from trading in Company securities while such information has not been publicly disclosed by the Company; provided that the aggregate period of delay under this paragraph may not exceed 60 days unless the holders of a majority of the Registrable Stock consent in writing to a longer delay. If the Registration Statement has not been declared effective by the Commission on or e-mail before the date that is 120 days after the Closing Date (the "Required Effective Date"), the Company shall, on the 121st day and each 30th day thereafter, make a payment to the Investors as promptly as practicablepartial compensation for such delay (the "Late Registration Payments") equal to 2% of the Offering Price paid by each of the Investors for the Shares, and in any eventnot previously sold by the Investor, within twenty-four (24) hours, after any until the Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior Commission. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to each Investor by wire transfer or check within 5 business days after the earlier of (i) five (5) Business Days after the SEC shall have informed end of each 30 day period following the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Required Effective Date or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason date of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially its reasonable best efforts to have the Initial Registration Statement and any amendment declared effective as soon as practicableby the SEC at the earliest possible date but no later than the earlier of (a) the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or (even if previously subject to review pursuant to clause (a) of this sentence) will not be subject to further review (the “Initial Registration Statement Effectiveness Deadline”). The Company shall use its reasonable best efforts to have the Warrant Initial Registration Statement and any amendment declared effective by the SEC at the earliest possible date but no later than the earlier of (a) the 75th calendar day following the initial filing date of the Warrant Initial Registration Statement if the SEC notifies the Company that it will “review” the Warrant Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Warrant Initial Registration Statement will not be “reviewed” or (even if previously subject to review pursuant to clause (a) of this sentence) will not be subject to further review (the “Warrant Effectiveness Deadline”). The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 24 hours, after any the applicable Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors Investor with copies of any related Prospectus prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use reasonable best efforts to keep the Initial Registration Statement covering and the Registrable Warrant Initial Registration Statement continuously effective pursuant to Rule 415 promulgated under the Securities is not declared effective Act and available for the resale by the SEC prior to the earlier Investors of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earliest to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (i) the Investor pursuant to date on which the applicable Purchase Agreement for Investors shall have resold all the Registrable Securities for each 30-day period or pro rata for any portion thereof following covered thereby by the applicable Registration Statement; and (ii) the date on which the Registrable Securities may be resold by which the Investors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect, as determined by counsel to the Company pursuant to a written opinion letter to such Registration Statement should have been effective effect, addressed and acceptable to the transfer agent for the Common Stock and the affected Holders (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Initial Registration Statement contemplated by this Section in and the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Warrant Initial Registration Statement (including any amendments or the related Prospectus so that such Registration Statement or Prospectus supplements thereto and prospectuses contained therein) shall each not include an contain any untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Inhibikase Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially its reasonable best efforts to have the Initial Registration Statement and any amendment declared effective by the SEC as soon promptly as practicablepossible after the filing thereof, but no later than the earlier of the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review, it being understood that the period shall be extended by such number of days, if any, following the initial filing date of the Initial Registration Statement, as the SEC is unable to review or declare effective the Registration Statement as a result of a government shutdown. The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) 24 hours, after any the Registration Statement is declared effective or is supplemented and shall simultaneously provide the Investors Investor with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a The Company shall use reasonable best efforts to keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Registrable Securities is not declared effective Act and available for the resale by the SEC prior to the earlier Investors of (i) five (5) Business Days after the SEC shall have informed the Company that no review all of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due at all times until the earlier to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% occur of the aggregate Purchase Price paid by following events: (i) the Investor date on which the Investors shall have resold all the Registrable Securities covered thereby pursuant to Rule 144 or pursuant to the applicable Purchase Agreement for Initial Registration Statement; and (ii) the date on which the Registrable Securities may be resold by the Investors without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for each 30-day period the Company to be in compliance with the current public information requirement under Rule 144 under the Securities Act or pro rata for any portion thereof following the date by which such Registration Statement should have been effective other rule of similar effect (the “Blackout Registration Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but The Initial Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in contain any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicablemisleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Alto Neuroscience, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC Effectiveness Deadline, or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineEffectiveness Date, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorInvestor holding Registrable Securities or Additional Shares, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions. Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each such Investor in cash. Notwithstanding anything herein or in the Purchase Agreement to the contrary, in no event shall the aggregate liquidated damages payable pursuant to this Agreement exceed in the aggregate ten percent (10%) of the aggregate purchase price of the Shares paid to the Investors pursuant to the Purchase Agreement.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2(c) in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Mad Catz Interactive Inc)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed has notified the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with the SEC or Closing Date, (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of within ninety (i90) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day days after the Additional Shares Filing Deadline or (z) a Shelf Registration Statement is not declared effective by the SEC within ninety (90) days after the Qualification Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of after the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashcash or in additional shares of Common Stock as determined by each Investor.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors and the Placement Agent in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) Investor and the Placement Agent, shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors and the Placement Agent in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Circle Group Holdings Inc)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement Statements declared effective as soon as practicablereasonably practicable after the filing thereof. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twentyforty-four eight (2448) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If Subject to Section 2(d), if
(A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) ten Business Days after the SEC shall have informed informs the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or and (ii) the one hundred twentieth (120th) 75th day after the Additional Shares Filing Closing Date (or the 120th day if the SEC reviews such Registration Statement), (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form S-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each InvestorInvestor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement by such Investor for the such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three in cash no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be made to each Investor paid by the Blackout Period Payment Date until such amount is paid in cashfull.
(ii) For Notwithstanding anything to the contrary contained herein, (i) the Company shall not more than twenty be required to file a Registration Statement (20or any amendment thereto) consecutive days or or, if a Registration Statement has been filed but not declared effective by the SEC, request effectiveness of such Registration Statement, for a total period of not more than up to forty-five (45) days in any twelve (12) twelve-month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that if (A) the Company determines in good faith that a postponement is in the best interest of the Company and its shareholders generally due to a pending transaction involving the Company (including a pending securities offering by the Company, or any proposed financing, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company), (B) the Company determines such suspension is necessary registration would render the Company unable to comply with applicable securities laws, (AC) delay the Company determines such registration would require disclosure of material non-public information concerning that the CompanyCompany has a bona fide business purpose for preserving as confidential, or (D) audited financial statements as of a date other than the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests fiscal year end of the Company or would be required to be prepared; and (Bii) the Company may, upon written notice to any Holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall Holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 180-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly provide prompt written notice (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but which notice shall not (without the prior written consent of an Investor) disclose to such Investor contain any material non-public information giving rise regarding the Company) to an Allowed Delay, (b) advise the Investors Holders whose Registrable Securities are included in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (DBV Technologies S.A.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with the SEC Closing Date or (y) a Shelf Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 60th day after the Additional Shares Filing Qualification Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities such Purchaser for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the InvestorsPurchasers’ exclusive monetary remedy for such events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Purchaser in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an InvestorPurchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Carbon Natural Gas Co)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twentyforty-four eight (2448) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If Subject to Section 2(d), if (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five ten (510) Business Days after the SEC shall have informed informs the Company that no review of the such Registration Statement will be made or that the SEC has no further comments on the such Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or and (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing Closing Date (or the 120th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the such Registration Statement), but excluding any Allowed Delay (as defined below) or or, if the inability Registration Statement is on Form S-1, for a period of any Investor twenty (20) days following the date on which the Company files a post-effective amendment to sell incorporate the Registrable Securities covered thereby due to market conditionsCompany’s Annual Report on Form 10-K (a “Maintenance Failure”), then the Company will make pro rata payments to each InvestorInvestor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 2.01% of the aggregate Purchase Price amount paid by the Investor pursuant to the applicable Purchase Agreement by such Investor for the such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three no later than five (35) Business Days of the last after each such 30-day of each month period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. Notwithstanding the foregoing, the Company will not be liable for any liquidated damages under this Section 2(c)(i) with respect to any Warrant Shares prior to their issuance.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month periodNotwithstanding anything to the contrary contained herein, the Company may may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus included that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in any the Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to has a bona fide business purpose for preserving as confidential, (AY) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”); provided. Upon disclosure of such information or the termination of the condition described above, that the Company shall promptly (a) notify each Investor provide prompt notice to holders whose Registrable Securities are included in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end Statement, and shall promptly terminate any suspension of the Allowed Delay sales it has put into effect and (c) use commercially shall take such other reasonable efforts actions to terminate the Allowed Delay permit registered sales of Registrable Securities as promptly as practicablecontemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Selecta Biosciences Inc)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the Registration Statement declared effective by the SEC as soon as practicablepracticable or within one hundred and eighty (180) days after the Closing Date (the “Effectiveness Deadline”). The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four three (243) hoursBusiness Days, after any the Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) the Company fails to use its best efforts to have the Registration Statement declared effective by the SEC and a Registration Statement covering the Registrable Securities that are Restricted Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Effectiveness Deadline, or (B) after a Registration Statement has been declared effective by the SEC, the Company fails to use its best efforts to cause the Registration Statement to remain continuously effective as specified in Section 3 hereof and sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor holder to sell the Registrable Restricted Securities covered thereby due to market conditions, then the Company will make pro rata payments to the holder of each Investor, Restricted Security as liquidated damages and not as a penalty, in either cash or Common Shares, at the option of the Company, valued at the then current market price on the Toronto Stock Exchange (or if the Common Shares are no longer listed on the Toronto Stock Exchange, the then current bid price as quoted by another exchange or quotation system on which the Common Shares are then trading) an amount equal to 2.01% of the aggregate Purchase Offering Price paid by of such Restricted Security attributable to that portion of the Investor Restricted Securities not resold pursuant to the applicable Purchase Agreement Regulation S for the Registrable Securities for each every 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Delay Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Delay Period until the termination of the Blackout Delay Period. Such payments shall be made to each Investor in cash.
(ii) For not No more than twenty three (203) consecutive days or for a total of not more than forty-five (45) days times in any twelve (12) month periodperiod for an aggregate of not more than thirty (30) days, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the CompanyBoard of Directors of the Company as evidenced in writing, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Effectiveness. (i) i. The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xi) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to by the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Effectiveness Deadline; or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Annual Update or Allowed Delay (each term as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions), then the Company will make pro rata payments (each payment, a “Registration Delay Payment”) to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”), as liquidated damages and not as a penalty, in an amount equal to (a) in the case of each Investor that is a Purchaser, 1.5% of the aggregate Purchase Price (as defined in the Subscription Agreements) paid by such Purchaser; (b) in the case of each Investor who is an affiliate of a Purchaser and acquired Registrable Securities from such Purchaser for no additional consideration, 1.5% of the aggregate Purchase Price (as defined in the Subscription Agreements) paid by the Purchaser who was the transferor or assignor (an “Assigning Purchaser”); provided, however, if (1) the Assigning Purchaser retains any Registrable Securities, the Registration Delay Payment payable to such Assigning Purchaser shall be governed by this proviso to clause (b) rather than clause (a), and such Registration Delay Payment shall be allocated pro rata between the Investor and the Assigning Purchaser based on the number of Registrable Securities held by the Investor and the Assigning Purchaser at the commencement of the applicable Blackout Period, and (2) the Registrable Securities held by the Assigning Purchaser were transferred or assigned to more than one affiliate for no additional consideration, such Registration Delay Payment shall be allocated pro rata among such affiliates based on the number of Registrable Securities held by the each such affiliate at the commencement of the applicable Blackout Period; and (c) in the case of an Investor that is not a Purchaser and not otherwise covered by the preceding clause (b), 1.5% of the aggregate purchase price paid by such Investor to acquire the Registrable Securities covered by the Registration Statement. Such payments Registration Delay Payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts Registration Delay Payments payable as liquidated damages pursuant to this paragraph Section shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Registration Delay Payments shall be made to each Investor in cash.
ii. Not more than once each fiscal year, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section for up to sixty (ii60) consecutive days for the primary purpose of filing a post-effective amendment to incorporate within such Registration Statement the Company’s audited financial statements for the preceding fiscal year (an “Annual Update”); provided, that the Company shall (a) promptly notify each Investor in writing of the commencement of an Annual Update; (b) promptly advise the Investors in writing to cease all sales under the Registration Statement until the Annual Update is completed and the applicable post-effective amendment has been declared effective by the SEC; and (c) use commercially reasonable efforts to complete an Annual Update as promptly as practicable.
iii. For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (Ai) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company Company; or (Bii) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, provided that the Company shall promptly (a) promptly notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, ; (b) promptly advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay; and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Arch Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five ten (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (510) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing DeadlineClosing Date (the 120th day if the SEC reviews the Registration Statement) (the earliest of such dates, the “Required Effectiveness Date”) or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty thirty (2030) consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the Registration Statement declared effective not later than the earlier to occur of (y) 120 days after the date of filing of such Registration Statement, or (z) five (5) Business Days following the Company's receipt of a no-review letter from the SEC relating to the Registration Statement; provided, however, if the Registration Statement is not declared effective within the time period set forth above, the Company shall continue to use its best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered therebypossible thereafter. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of does not use its best efforts to have the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed declared effective in accordance with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadlinepreceding sentence, or (B) after a Registration Statement has been declared effective by the SEC, SEC sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay except as excused pursuant to subparagraph (as defined ii) below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 3010-day period or pro rata for any portion thereof following the date (1) by which such Registration Statement should have been effective as described in (A) above had the Company used its best efforts to have the Registration Statement declared effective or (2) sales cannot be made pursuant to such Registration Statement after it has been declared effective as described in (B) above (the “"Blackout Period”"). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ ' exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (x) the right effectiveness of the Registration Statement in the case of (A) above; and (y) the Registration Statement again being available for sales by the Investors to seek injunctive reliefin the case of (B) above. The amounts payable as liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States, and amounts payable as liquidated damages shall be paid monthly within three two (32) Business Days of the last day of each month 10-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty fifteen (2015) consecutive days or for a total of not more than forty-five thirty (4530) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section 2 containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Effectiveness. (i) The Company shall will use its commercially reasonable efforts to have the such Registration Statement declared effective by the Commission within 60 days of the File Date, provided, however, that the Company will not be obligated to effect such a registration under the Securities Act if the Company furnishes to the holders of the Registrable Stock (as soon defined above) a certificate signed by the President of the Company stating that in the good faith judgment of the Company's Board of Directors, (i) the offering would interfere in any material respect with any financing, acquisition, corporate reorganization or other material transaction under consideration by the Company or (ii) there is some other material development relating to the condition (financial or other) of the Company that has not been disclosed to the general public and as practicable. The Company shall notify to which it is in the Company's best interests and lawful not to disclose such development, it being hereby acknowledged and agreed by the Investors that transmittal of such information pursuant to either (i) or (ii) of this paragraph will be kept confidential by facsimile the Investors and may prevent the Investors from trading in Company securities while such information has not been publicly disclosed by the Company; provided that the aggregate period of delay under this paragraph may not exceed 60 days unless the holders of a majority of the Registrable Stock consent in writing to a longer delay. If the Registration Statement has not been declared effective by the Commission on or e-mail before the date that is 120 days after the Closing Date (the "Required Effective Date"), the Company shall, on the 121st day and each 30th day thereafter, make a payment to the Investors as promptly as practicablepartial compensation for such delay (the "Late Registration Payments") equal to 2% of the Offering Price paid by each of the Investors for the Shares, and in any eventnot previously sold by the Investor, within twenty-four (24) hours, after any until the Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior Commission. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to each Investor by wire transfer or check within 5 business days after the earlier of (i) five (5) Business Days after the SEC shall have informed end of each 30 day period following the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Required Effective Date or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason date of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement, any post effective amendment thereto and any Shelf Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement or post effective amendment is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with Closing Date (120 days if the SEC reviews the Registration Statement) (the “Effectiveness Deadline”), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (120 days if the earlier of SEC reviews the Registration Statement), or (iz) five (5) Business Days a Shelf Registration Statement is not declared effective by the SEC within 90 days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that Qualification Deadline (120 days if the SEC has no further comments on reviews the Shelf Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineStatement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, its demand and receipt of material, non-public information pursuant to Section 4 herein, and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall be in partial compensation to the Investors, and shall not constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, however, that so long as the Registration Statement is on Form SB-2 or on any other form that does not allow for incorporation by reference of reports and other materials filed by the Company pursuant to Section 13(a) or 15(d) of the 1934 Act, the Company may upon written notice to the Investors suspend sales under the Registration Statement to the extent, but in any such case only to the extent, necessary to allow any post-effective amendment to the Registration Statement or supplement to the Prospectus to be prepared and filed with the SEC and, if necessary, declared effective (and such suspension shall be deemed to be an Allowed Delay without regard to the time periods mentioned above) for the period commencing at the time that the Company disseminates a press release announcing its preliminary financial results for any fiscal period or announcing a material development and ending on the second Business Day after the earlier of (A) the date that the related report on Form 10-KSB, 10-QSB or 8-K, as applicable, is filed with the SEC and (B) the date on which such report is required to be filed under the 1934 Act (without regard to Rule 12b-25 promulgated thereunder); provided, further, that in the event the Company determines in good faith, based on the advice of counsel, that the matters disclosed in such press release require the filing of a post-effective amendment to the Registration Statement, the Company shall file such post-effective amendment promptly and in no event later than ten (10) Business Days after the date such matters are first disclosed to the public and shall use commercially reasonable efforts to have such post-effective amendment to the Registration Statement declared effective as promptly as practicable and the period for which the Company may suspend the use of the Registration Statement shall be extended to the earliest to occur of (W) the date the post-effective amendment to the Registration Statement is withdrawn by the Company, (X) the date such post-effective amendment to the Registration Statement is declared effective by the SEC, (Y) the second Business Day after the SEC has notified the Company that either (I) it has elected not to review the post-effective amendment to the Registration Statement or (II) it has no further comments on the post-effective amendment to the Registration Statement or (Z) 45 days after the initial filing of the post-effective amendment to the Registration Statement with the SEC.
(iii) The Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Primal Solutions Inc)
Effectiveness. (ia) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hoursthree Business Days, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five ten (510) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor Purchaser to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each InvestorPurchaser, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Offering Price paid per Unit held by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities such Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three ten (310) Business Days days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor Purchaser in cash. Amounts payable as liquidated damages hereunder shall cease when such securities are no longer Registrable Securities.
(iib) For not more than twenty (20) thirty consecutive days or for a total of not more than forty-five sixty (4560) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or Company, (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (C) to file a post-effective amendment to such Registration Statement to comply with the undertaking in Item 512 of Regulation S-K or to include updated annual audited financial statements (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investora Purchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hoursone business day, after any Registration Statement is declared effective and shall simultaneously at such time provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xx) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) within ninety (90) days after the Registration Statement is first filed with Closing Date (120 days if the SEC reviews the Registration Statement), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to within ninety (90) days following the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to time such Registration Statement for any reason was required to be filed pursuant to Section 2(a)(ii) (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement"Blackout Period"), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.25% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective. If after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the “Company's failure to update the Registration Statement), but excluding the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (ii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to the greater of (i) 1.25% of 50% of the Investor's Subscription Amount or (ii) 1.25% of the product of (x) the Investor's Per Share Subscription Price multiplied by (y) the sum of (i) the Shares and (ii) the Warrant Shares then held by the Investor, for such Blackout Period”). Such payments pursuant to this paragraph 2(c) shall be in partial compensation to the Investors, and shall not constitute the Investors’ ' exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the a Blackout Period until the termination of the such Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a the Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within two (2) months following the earlier of (i) five (5) Business Days after Closing Date, or the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares Registrable Securities is not declared effective by the SEC prior within two (2) months following demand of a Purchaser relating to the earlier Additional Registrable Securities to be covered thereby, provided that if either of (i) five (5) Business Days after such Registration Statements is subject to review by the SEC staff (x) solely as a "plain English" or "screening" review, then such effective date shall have informed be within three (3) months following the Company that no Closing Date or demand, as the case may be, and (y) for a regular SEC review (which may include in part a "plain English" review), then such effective date shall be within six (6) months following the Closing Date or demand, as the case may be (each of the foregoing deadlines, a "Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing DeadlineDate"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowC) the Common Stock generally or the inability of any Investor to sell the Registrable Securities covered thereby due (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange (each an "Approved Market") or trading of the Common Stock is suspended or halted thereon, or (D) the Company fails, refuses or is otherwise unable to market conditionstimely issue Underlying Shares upon conversion of Debentures or Warrant Shares upon exercise of the Warrants, in accordance with the terms of the Debentures and Warrants, or unlegended certificates as required under the Agreements, in each case within ten (10) days following the Purchaser's written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then the Company will make pro pro-rata payments to each Investor, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 2.02% of the sum of the aggregate Purchase Price paid by principal amount then outstanding under the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities Debentures for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A), (B), (C) or (D) above occurs and is continuing (the “"Blackout Period”"). Each such payment shall be due and payable within five (5) days of the end of each month (or ending portion thereof) of the Blackout Period until the termination of the Blackout Period. Such payments shall be in partial compensation to the Purchasers, and shall not constitute the Investors’ Purchasers' exclusive monetary remedy for such events, but . The Blackout Period shall not affect terminate upon (w) the right effectiveness of the Investors to seek injunctive reliefapplicable Registration Statement in the case of (A) and (B) above; (x) listing or inclusion and/or trading of the Common Stock on an Approved Market in the case of (C) above; (y) delivery of such shares in the case of (D) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Purchasers, in lawful money of the United States or in shares of Common Stock at the lower of the Conversion Price or Market Price, and amounts payable as liquidated damages shall be paid monthly within three five (35) Business Days business days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Amounts payable as liquidated damages hereunder shall be made to each Investor in cashcease when a Purchaser no longer holds Debentures, Warrants, Registrable Securities or Additional Registrable Securities, as applicable.
(ii) For not more than twenty five (205) consecutive trading days or for a total of not more than forty-five twenty (4520) trading days in any consecutive twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Purchasers in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) a Purchaser, shall the Company disclose to such Investor Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly as practicableDelay.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the Registration Statement declared effective as soon as practicablepracticable (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the 1933 Act within three (3) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration Statement will not be "reviewed," or not be subject to further review). The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four two (242) hoursBusiness Days, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(xA) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to by June 15, 2006 (the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing "Effectiveness Deadline"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s 's failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditionsconditions and except as temporarily excused for the applicable period pursuant to subparagraphs (ii) and (iii) below, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.0% of the aggregate Purchase Price amount purchase price paid by the such Investor pursuant for Shares that continue to the applicable Purchase Agreement for the be Registrable Securities for each 30-day period (or pro rata for any portion thereof thereof) during which sales cannot be made pursuant to such registration statement following the date by which such Registration Statement should have been effective (the “Blackout Period”)Effectiveness Deadline. Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly made within three five (35) Business Days of the last day end of each partial or full calendar month following with respect to which such payments are due and shall be in lieu of any other monetary damages the commencement Investors may seek or obtain as a result of the Blackout Period until the termination respective delay; provided, however, nothing herein shall prohibit an Investor from seeking specific performance of the Blackout PeriodCompany's obligations under this Agreement. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Chief Executive Officer and Chief Financial Officer of the Company, upon advice of counsel, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “"Allowed Delay”"); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable its best efforts to terminate the an Allowed Delay as promptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Vitalstream Holdings Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days the 90th day after the Registration Statement is first filed with Closing Date (the 120th day if the SEC reviews the Registration Statement) or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (120 days if the earlier SEC reviews the Registration Statement) (each of (i) five through (5iii) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadlinean "Effectiveness Failure"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, including without limitation, limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.01.5% of the aggregate Purchase Price paid amount invested by the such Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”a "Maintenance Failure"). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days in cash on the day of the last Effectiveness Failure and the initial day of each month following a Maintenance Failure, as applicable, and thereafter on the commencement earlier of (I) the Blackout Period until thirtieth day after the termination initial day of such Effectiveness Failure or Maintenance Failure, as applicable, and (II) the Blackout Periodthird Business Day after the Effectiveness Failure or Maintenance Failure, as applicable, is cured. Such The payments to which a holder shall be made entitled pursuant to each Investor this Section 2(c)(i), Section 2(a)(i) and Section 2(a)(ii) are referred to herein as "Registration Delay Payments." In the event the Company fails to make Registration Delay Payments in casha timely manner, such Registration Delay Payments shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and Delay, (c) use commercially reasonable best efforts to terminate the an Allowed Delay as promptly as practicable, and the first day of any Allowed Delay must be at least two (2) trading days after the last day of any prior Allowed Delay.
Appears in 1 contract
Sources: Registration Rights Agreement (House of Taylor Jewelry, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable its best efforts to have the each Registration Statement declared effective as soon as practicable. The In connection therewith, the Company shall notify respond to all SEC comments on the Investors Registration Statement and file any amendments to the Registration Statement as soon as reasonably practicable following any date on which the SEC furnishes comments to, asks questions of, or requests further information from, the Company or its counsel with respect to the Registration Statement or any part thereof or any document incorporated by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after reference therein. After any Registration Statement is declared effective and by the SEC, the Company shall simultaneously provide the Investors with copies of any related Prospectus cause such Registration Statement to be used remain effective in connection accordance with the sale or other disposition terms hereof, subject to permitted suspension of the securities covered thereby. such effectiveness only for Allowed Delays (as defined below).
(ii) If (A)(x1) a Registration Statement covering all of the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the date which is thirty (30) days after the Closing Date (a “Filing Failure”) or (B) not declared effective by the SEC prior to on or before the earlier of Effectiveness Deadline (ian “Effectiveness Failure”) five or (52) Business Days on any day after the SEC shall have informed date the Company that no review of the initial Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (iifiled pursuant to Section 2(a) ninety (90) days after the Registration Statement hereof is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior sales of all of the Registrable Securities required to be included on such Registration Statement cannot be made (other than during an Allowed Delay (as defined in Section 2(c)(iii) below) pursuant to such Registration Statement or otherwise (including, without limitation, because of a failure to keep such Registration Statement effective until the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review end of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, Period); to disclose such information as is necessary for sales cannot to be made pursuant to such Registration Statement for any reason Statement; to register a sufficient number of shares of Common Stock or to maintain the listing of the shares of Common Stock) (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement“Maintenance Failure”), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investorthen, as liquidated damages and not as a penaltypenalty to any holder by reason of any such delay in or reduction of its ability to sell the underlying shares of Common Stock (which remedy shall be the exclusive economic remedy available with respect to Filing Failures, in Effectiveness Failures and Maintenance Failures), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount equal to two percent (2.0% %) of the aggregate Purchase Price paid by (as such term is defined in the Investor pursuant to the applicable Securities Purchase Agreement for the Agreement) of such Investor’s Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which included in such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cashStatement.
(iiiii) For not more than twenty (20) consecutive days or Trading Days and for a total of not more than forty-forty five (45) days Trading Days in any twelve (12) consecutive month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section not containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Investors in writing of the commencement existence of and the reasons for an Allowed Delay(but in no event, but shall not (without the prior written consent of an Investor) , shall the Company disclose to such the Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay. The duration of the Registration Period will be extended by the number of days of any and (c) use commercially reasonable efforts to terminate the all Allowed Delay as promptly as practicableDelays.
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Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the applicable Shelf Registration Statement or New Registration Statement declared effective as soon as practicablepracticable but in no event later than the applicable Effectiveness Deadline (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act), and shall use its commercially reasonable efforts to keep each Shelf Registration Statement or New Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statements have been publicly sold by the Holders or (ii) the date that all Registrable Securities covered by such Registration Statements may be sold by non-affiliates without volume or manner-of-sale restrictions pursuant to Rule 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Effectiveness Period”). The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Purchasers with copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If (A)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Additional Shares Filing Deadline, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments to each Investor, as liquidated damages and not as a penalty, in an amount equal to 2.0% of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall constitute the Investors’ exclusive monetary remedy for such events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each Investor in cash.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (B) amend or supplement the affected applicable Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investora Purchaser) disclose to such Investor Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Investors Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
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Effectiveness. (ia) The Company shall use commercially reasonable best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors Holder by facsimile or e-mail as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors Holder with copies a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. If If: (A)(x1) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (A) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on the Registration Statement, or (B) the 90th day after the Issuance Date (if the SEC reviews such Registration Statement); or (2) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) ninety (90) days after the Registration Statement is first filed with the SEC or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement Statement, or (ii) the one hundred twentieth (120th) 90th day after the Additional Shares Filing Deadline, or Issuance Date (B) after a Registration Statement has been declared effective by if the SEC, sales cannot be made pursuant to SEC reviews such Registration Statement for any reason (including, without limitation, by reason of a stop order, or the Company’s failure to update the Registration Statement), but excluding any Allowed Delay (as defined below) or the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, then the Company will make pro rata payments pay to each Investorthe Holder, as liquidated damages and not as a penalty, in an amount equal to 2.0% one percent (1%) of the aggregate Purchase Price paid by the Investor pursuant to the applicable Purchase Agreement for the Registrable Securities unpaid Principal amount of this Note for each 30-day period (or pro rata for any portion thereof thereof) following the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments payment(s) shall constitute the Investors’ Holder’s exclusive monetary remedy for such eventsfailure, but shall not affect the Holder’s right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid monthly within three (3) Business Days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments payment(s) shall be made to each Investor the Holder in cash, or at the option of the Holder, be added to the unpaid Principal amount of this Note, no later than three (3) Business Days after the end of each 30-day period.
(iib) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 5 in the event that the Company determines in good faith that such suspension is necessary to to: (A) delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company Company; or (B) amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (a) notify each Investor the Holder in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investorthe Holder) disclose to such Investor Holder any material non-public information giving rise to an Allowed Delay, ; (b) advise the Investors Holder in writing to cease all sales under the Registration Statement until the end of the Allowed Delay Delay; and (c) use commercially reasonable efforts to terminate the an Allowed Delay as promptly as practicable.
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