Registration Default. If (i) the Registration Statement is not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof or otherwise.
Appears in 1 contract
Registration Default. If (i) the Registration Statement is not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Registrable Securities and Warrant Shares issued or issuable upon exercise of the Warrants are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by or issuable to such Holder as of the Registration Default) of (A) with respect to the Conversion Shares, $.0084 .00825 for each Conversion Share outstanding outstanding, and (B) with respect to the Warrant Shares, the greater of (I) ten thousand dollars ($10,000) and (II)(x) the aggregate number of Warrant Shares, multiplied by (y) one percent (1%) multiplied by the difference between (a) the Market Price of the Company's Common Stock on the Registration Default Date and (b)the weighted average exercise price of the Warrants, payable for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof hereof, the Securities Purchase Agreement, the Articles of Amendment, or otherwise.
Appears in 1 contract
Registration Default. If The Company agrees that (i) if the Registration Statement is has not been filed on or before within 30 days after the Filing Deadline or declared effective by the Commission on or before the Registration Deadlinedate of this Agreement, (ii) after if the Registration Statement has not been amended to address comments of the staff of the SEC that require an amendment or a request of the SEC or such staff for an amendment, within 30 days following the Company’s receipt of any such comments or request (subtracting from such number of days any number of days, but not exceeding 30 days, during which the Company has failed to use reasonable efforts to prepare and file such amendment; and adding to such number of days any delay exceeding 10 days caused by the Investors in submitting, following written request therefor made by the Company, any information required from them to prepare such amendment), (iii) if the Registration Statement has not, in the event of a “no review” or “limited review” of the Registration Statement by the SEC, been declared effective by the CommissionSEC within 60 days after the date of this Agreement, (iv) if the Registration Statement has not, in any event, been declared effective by the SEC within 120 days after the Closing Date, (v) if the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 under the Securities Act within five business days of the date the Company is first notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be reviewed or that it is not subject to any further review, or (vi) if (1) the Company suspends sales or dispositions and offers therefor of the Registrable Securities in accordance with Section 4 or (2) on any day after the date the Registration Statement is initially declared effective by the SEC sales of all the Registrable Securities required to be included in such Registration Statement cannot be made by a Holder under the pursuant to such Registration Statement including, without limitation, because of a failure to keep such Registration Statement effective, to disclose such information as is necessary for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable sales to be made pursuant to Rule 144(k)); providedsuch Registration Statement, that to register sufficient shares of Common Stock or to list or maintain the failure listing of the Registration Statement to remain effective after Common Stock (including the two Registrable Securities), in each case described in clause (1) or clause (2) year anniversary immediately above, for more than an aggregate of its initial effective date thereof if at such time all 60 days during any period of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph 12 months (each of the foregoing clauses such event referred to in clause (i), (ii), (iii), (iv) and ), (v) being referred or (vi), a “Registration Default”), then the Company will pay to herein each Investor, as liquidated damages and not as a "Registration Default")penalty, the Company shall make a cash payment to each Holder in cash, an amount equal to such Holder's pro rata share one percent (based on 1%) of the aggregate number of Registrable Securities held amount invested by such Holder as of Investor under the Registration Default) of $.0084 Securities Purchase Agreement for each Conversion Share outstanding for each thirty (30) -day period period, or part thereof in which portion thereof, that a Registration Default existsexists under clause (i), (ii), (iii) , (iv), (v) or (vi), above, but liquidated damages shall not be duplicated on account of multiple Registration Defaults existing simultaneously and shall not exceed an aggregate of 10%. Each Accordingly, if two or more Registration Defaults exist simultaneously, there shall nevertheless be only one accrual of liquidated damages during the period of such payment simultaneous Registration Defaults. Such payments of liquidated damages shall be made within five (5) Business Days following on the last first day of each calendar month quarter with respect to penalties accrued during the preceding calendar quarter. If the Company fails to make any such payments on the dates set forth above, such payments shall bear interest at the rate of 10% per annum until paid in which full. Subject to the Investor’s right to specific performance, but otherwise notwithstanding anything to the contrary in this Agreement or the Securities Purchase Agreement, the Company’s payment of liquidated damages as provided in this Section 8 shall be the Investor’s sole and exclusive remedy in the event of any Registration Default; provided, however, that if the foregoing remedy is deemed unenforceable by a court of competent jurisdiction, or if the Registration Default existed. Any such payment is caused by the bad faith or willful misconduct of the Company in complying with its obligations under this Agreement, then the Investor shall be in addition to any have all other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof or otherwise.
Appears in 1 contract
Registration Default. If (a) The Company agrees that, in the event that (i) the Registration Statement is has not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the CommissionSEC on or before March 30, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder 2007 or (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure ii) if effectiveness of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if is suspended at such any time all of the Conversion Shares are freely saleable other than pursuant to Rule 144(k)a Suspension Notice while any Registrable Securities remain outstanding (each, shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), for any thirty-day period (a "Liquidated Damages Period") during which the Registration Default remains uncured, the Company shall make a pay an aggregate of $250,000 to the Holders, which cash payment to shall be made on a pro rata basis in accordance with each Holder equal to such Holder's pro rata share (based on percentage holding of the aggregate number of then outstanding Registrable Securities held by Securities, for each Liquidated Damages Period during which the Registration Default remains uncured; provided, however, that if a Holder fails to provide the Company with any information that is required to be provided in the Registration Statement with respect to such Holder as set forth herein, then the commencement of the Registration Default) Liquidated Damages Period described above shall be extended until two business days following the date of $.0084 receipt by the Company of such required information; provided further that the amount payable to any Holder hereunder for each Conversion Share outstanding any partial Liquidated Damages Period shall be prorated for each thirty (30) day period or part thereof in the number of actual days during such Liquidated Damages Period during which a Registration Default existsremains uncured.
(b) The Company shall deliver said cash payment to the Holders by the seventh business day after the end of each such Liquidated Damages Period. Each If the Company fails to pay said cash payment to the Holders in full by the seventh business day after the end of such payment Liquidated Damages Period, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holders, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.
(c) Notwithstanding the other provisions of this Section 4, the maximum amount of liquidated damages which the Company may be obligated to pay under this Section 4 shall be made within five limited to $2,000,000 (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof or otherwise"Liquidated Damages Cap").
Appears in 1 contract
Sources: Equity Registration Rights Agreement (Harbin Electric, Inc)
Registration Default. If (i) the Registration Statement covering the Registrable Securities required to be filed by the Company pursuant to Section 2(a) hereof is not filed on with the Commission by the March 31, 1999, or before (ii) the Filing Deadline or Registration Statement is not declared effective by the Commission on by May 31, 1999, or before (iii) the Registration DeadlineCompany fails to file with the Commission a request for acceleration in accordance with Rule 12d1-2 promulgated under the Securities Exchange Act of 1934, as amended, or Rule 461 promulgated under the Securities Act, as amended, within five (ii5) after days of the date that the Company is notified in writing by the Commission that the Registration Statement has been will not be "reviewed," or not subject to further review or comment, or (iv) such Registration Statement is filed with and declared effective by the Commission but thereafter ceases to be effective as to all Registrable Securities at any time prior to the expiration of the Registration Period (as defined in Section 3(a) below), without being succeeded within thirty (30) days by a subsequent Registration Statement filed with and declared effective by the Commission, sales or (v) trading in the Common Stock shall be suspended from the AMEX or the principal national securities exchange on which the Common Stock is then listed for more than three (3) consecutive Business Days, or (vi) the conversion rights of Registrable Securities cannot be made by a Holder under the Holders are suspended for any reason or (vii) an amendment to the Registration Statement is not filed by the Company with the Commission within ten (10) days of the Commission's notifying the Company that such amendment is required in order for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain be declared effective after the two (2) year anniversary any such failure or breach being referred to as an "EVENT," and for purposes of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (vi) the date on which such Event occurs, or for purposes of clause (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to date on which such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) day period is exceeded, or for purposes of clause (iv) the date which such 30 day-period is exceeded, for purposes of clause (v) the date on which such three (3) Business Days following Day-period is exceeded or for purposes of clause (vii) the last day date which such 10 day-period is exceeded being referred to as "EVENT DATE"), then the Company shall pay to the Holders an amount equal to 2% of the purchase price per share of Series C Preferred Stock (as defined in the Securities Purchase Agreement) on the first of each calendar month monthly anniversary of the Event Date until such time as the applicable Event is cured or the Company has redeemed the Series C Preferred Stock in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to accordance with Section 6.5 of the terms hereof or otherwiseCertificate of Designations.
Appears in 1 contract
Sources: Registration Rights Agreement (Columbia Laboratories Inc)
Registration Default. If Subject to Section 6(a) hereof, if the Registration Statement covering the Registrable Securities required to be filed by the Company pursuant to Section 1(a) is not (i) filed with the Registration Statement is not filed on or before Commission by the Filing Deadline (a "Filing Default"), or (ii) declared effective by the Commission on or before within 90 days after the Registration Deadlinedate of the Closing (or, (ii) after if the Registration Statement has been declared effective is reviewed by the Commission, sales of Registrable Securities cannot be made by a Holder under within 120 days after the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure date of the Registration Statement to remain effective after Closing) (the two "Effectiveness Deadline") (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph ("Effectiveness Default"; each of the foregoing clauses (i), (ii), (iii), (iv) a Filing Default and (v) an Effectiveness Default being referred to herein as a "Registration Default"), then, as the exclusive remedy in respect of such Registration Default, the Company shall make pay, as liquidated damages and not as a cash payment penalty, to the Purchasers (pro rata to each Holder equal to such Holder's pro rata share (Purchaser, based on upon the aggregate number of Registrable Securities held by such Holder each Purchaser on the date payment is due) an amount equal to the Applicable Default Percentage (defined below) multiplied by the aggregate Purchase Price (as defined in the Securities Purchase Agreement ) paid for the Preferred Shares for every 30 calendar days following the Filing Deadline or Effectiveness Deadline, as the case may be, that the Registration Statement is not filed or declared effective, as the case may be (the "Payment Amount"). Such amount shall be paid by the Company to the Purchasers within three days after each Computation Date. As used in this Section 1(d), "Computation Date" means the date which is 30 days after the date of the Registration Default and, if the Registration Statement to be filed by the Company pursuant to Section 1(a) has not theretofore been filed with the Commission or declared effective by the Commission, as the case may be, each date which is 30 days after the previous Computation Date, until such Registration Statement is so filed or declared effective, as the case may be. Within three days after the Registration Statement is filed with the Commission, in the case of a Filing Default, or within three days after the Registration Statement is declared effective by the Commission, in the case of an Effectiveness Default, the Company shall pay to the Purchasers (pro rata to each Purchaser, based upon the number of Registrable Securities held by each Purchaser at the time payment is due) a pro rata portion of $.0084 for each Conversion Share outstanding for each thirty the Payment Amount, based on the number of days between the, as applicable, date of the Registration Default or last Computation Date. For the avoidance of doubt, (x) the Company shall not pay under this Section 1(d) in respect of any 30) -day period or part thereof and in which respect of all Registration Defaults more than an amount equal to the Applicable Default Percentage multiplied by the aggregate Purchase Price ; and (y) if a Filing Default occurs and the Registration Default exists. Each such payment Statement is subsequently filed with the Commission, then no Payment Amount shall be made within five payable in respect of the period following filing of the Registration Statement with the Commission, unless the Registration Statement is not declared effective by the Commission prior to the Effectiveness Deadline. As used herein, the term "Applicable Default Percentage" means, prior to one hundred and fifty (5150) Business Days days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equityClosing Date, whether pursuant to the terms hereof or otherwiseone percent (1%) and, thereafter, two percent (2%).
Appears in 1 contract
Registration Default. If any of the following events shall occur (ieach, a “Registration Default”), then the Company shall pay Registration Default Dividends (as defined in the Series B Certificate of Designations) to the Investors as contemplated in the Series B Certificate of Designations:
(a) if a Resale Shelf Registration Statement is not filed with the SEC on or before prior to the Filing Deadline or date that is 120 days after the date hereof;
(b) if a Resale Shelf Registration Statement is filed but not declared effective by the Commission SEC (or has not become effective in the case of an automatic shelf registration statement) on or before prior to the Registration Deadline, (ii) date that is 180 days after the date hereof; or
(c) if a Shelf Registration Statement has been declared or become effective but ceases to be effective or usable for the offer and sale of the Registrable Securities (without being succeeded immediately by an effective replacement registration statement), or the Commission, sales Shelf Registration or prospectus contained therein ceases to be usable in connection with the resales of Registrable Securities cannot be made by for a Holder period of time which exceeds one hundred and twenty (120) days in the aggregate in any consecutive 12-month period because of a suspension under the Registration Statement for any reason not within the exclusive control of Section 3.04 or otherwise; provided that, no such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iiiDividends shall accrue under this Section 3.12(c) if the Common Stock registration statement ceases to be listed on effective or usable for the Nasdaq National Marketoffer, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails sale and resale of Registrable Securities solely as a result of requirement to submit file a request for acceleration within the time frames required hereby, or (v) an post-effective amendment or supplement to the Registration Statement, or a new registration statement, required prospectus to be filed pursuant make changes to the terms information regarding selling securityholders or the plan of distribution provided for therein; provided further, however, that (i) upon the filing of the Resale Shelf Registration Statement (in the case of paragraph 4(k(a) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (iabove), (ii) upon the effectiveness of the Resale Shelf Registration Statement (in the case of paragraph (b) above), or (iii) upon such time as the Shelf Registration which had ceased to remain effective or usable for resales again becomes effective and usable for resales (in the case of paragraph (c) above), the Registration Default Dividends shall cease to accrue. Commencing on the date any such Registration Default occurs, Registration Default Dividends shall accrue on the Stated Value (ivas defined in the Series B Certificate of Designations) of the Series B Preferred Stock, (i) at a rate of 0.25% per annum for the first 90 days from and including the date such Registration Default occurs and (ii) 0.50% per annum thereafter. Registration Default Dividends shall cease to accrue when, (i) with respect to paragraph (a) above, the relevant filing is made and (ii) with respect to paragraphs (b) and (vc) being referred above, the relevant registration statement becomes effective. Any amounts of Registration Default Dividends due pursuant to herein this Section 3.12 will be payable in cash on the next succeeding dividend payment date with respect to Preferred Dividends (as a "defined in the Series B Certificate of Designations) to Investors entitled to receive such Registration Default")Default Dividends on the relevant dividend payment date for the payment of Preferred Dividends. If any share of Series B Preferred Stock ceases to be outstanding during any period for which Registration Default Dividends is accruing, the Company will prorate the Registration Default Dividends payable with respect to such share. Upon the cure of all Registration Defaults then continuing, the accrual of Registration Default Dividends will automatically cease and the dividend rate borne by the Series B Preferred Stock will revert to the dividend rate otherwise in effect at such time. If Registration Default Dividends would be payable because more than one Registration Default occurs, the Company shall make only be obligated to pay Registration Default Dividends in an amount not exceeding 0.50% per annum. Other than the Company’s obligation to pay Registration Default Dividends in accordance with this Section 3.12, the Company will not have any liability for damages with respect to a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof or otherwise.ARTICLE IV Limitations on Transfers
Appears in 1 contract
Registration Default. If The Company further agrees that, in the event that (ia) the Registration Statement is (i) has not been filed on or before with the Filing Deadline or SEC within sixty (60) days after the Closing Date, (ii) has not been declared effective by the Commission on SEC with respect to all of the Registrable Securities by the Required Effectiveness Date or before the Registration Deadline, (iiiii) after the Registration Statement has been is declared effective by the CommissionSEC, sales of it is suspended by the Company or ceases to remain continuously effective at all times during the Registration Period as to all applicable Registrable Securities cannot for which such Registration Statement is required to be made effective, other than, in each case, within the time period(s) permitted by Section 6.7(b) or during either of the two Permitted Update Periods, or (b) the Company has failed to perform its obligations set forth in Section 6.4 within the time periods required therein (each such event referred to in clauses (a)(i), (ii) and (iii) and clause (b), a Holder under “Registration Default”), for all or part of one or more thirty-day periods (each a “Penalty Period”) during which the Registration Statement for any reason not within Default remains uncured, the exclusive control Company shall pay to each Purchaser 1% of such Holder Purchaser’s aggregate purchase price of its Securities (other than such in the case of clause (ii) above, solely with respect to those Registrable Securities as that are then freely saleable pursuant not subject to Rule 144(k))an effective Registration Statement by the Required Effectiveness Date) for each Penalty Period (or partial Penalty Period) during which the Registration Default remains uncured; provided, however that if the failure primary cause of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) is a Purchaser’s failure to provide the Common Stock ceases Company with any information that is required to be listed on provided in the Nasdaq National Marketapplicable Registration Statement with respect to such Purchaser as set forth herein, then the Nasdaq SmallCap Market or commencement of the New York Stock ExchangePenalty Period described above shall be extended until two Business Days following the date of receipt by the Company of such required information; and provided, (iv) further, that in no event shall the Company be required hereunder to pay to any Purchaser pursuant to this Agreement an aggregate amount that exceeds 10% of the aggregate Closing Purchase Price paid by such Purchaser for such Purchaser’s Securities. The Company shall deliver said cash payment to the Purchaser by the fifth Business Day after the end of each such Penalty Period. If the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement pay said cash payment to the Registration Statement, or a new registration statement, required to be filed pursuant to Purchasers in full by the terms fifth Business Day after the end of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default")Penalty Period, the Company shall make 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 Purchasers, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held payments provided by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment this Section 6.3 shall be in addition to any to, and not in lieu of, such other remedies available to damages as each Holder at law or Purchaser may establish in equity, whether pursuant to the terms hereof or otherwiseconnection with each Registration Default.
Appears in 1 contract
Registration Default. If (iA) the Registration Statement is not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (iiB) after the Registration Statement has been declared effective by the CommissionCommission and during a period in which an Allowed Delay is not in effect, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k144 or any successor provision without regard to volume or manner of sale restrictions)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (vC) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(kSection 3(j) below is not filed on or before the date required by such paragraph Section 3(j), (each of the foregoing clauses (iA), (ii), (iii), (ivB) and (vC) being referred to herein as a "“Registration Default"”), the Company shall make a cash payment payments to each Holder party hereto equal to such Holder's ’s pro rata share (based on the aggregate number of shares of Common Stock constituting Registrable Securities held by or issuable to such Holder as of the Registration DefaultDeadline) of $.0084 for each Conversion Share outstanding 0.5% of the Market Price (as defined below) of such Common Stock for each thirty (30) day period or part thereof in which a Registration Default existsexists (prorated for any period of less than thirty days); provided, however, that the maximum aggregate percentage represented by such payments shall be capped at five percent (5%) of such Market Price. Each such payment shall be made within five (5) Business Days following the last day of each the calendar month in which a Registration Default existedoccurs. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant or otherwise. Notwithstanding the foregoing, if any SEC Guidance sets forth a limitation on the number of shares of Common Stock permitted to be registered on the Registration Statement (and notwithstanding that the Company used reasonable efforts to advocate with the Commission for the registration of all or a greater number of such shares), such limitation shall not constitute a Registration Default and, in such event, the number of shares of Common Stock to be registered on such Registration Statement will be reduced, first, by shares of Common Stock owned by Holders who are not Affiliates of the Company (applied, in the event that some of such shares may be registered, to the terms hereof Holders on a pro rata basis based on the total number of unregistered shares held by such Holders) and, second, by shares of Common Stock owned by Holders who are Affiliates of the Company (applied, in the event that some of such shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered shares held by such Holders). “Market Price” means, as of a particular date, the highest daily VWAP for the Common Stock during the period of twenty (20) consecutive Trading Days occurring immediately prior to (but not including) such date as reported in the Principal Market. If the Market Price cannot be calculated because the Common Stock is no longer publicly traded or otherwise, then the Company shall submit such calculation to an independent investment banking firm of national reputation reasonably acceptable to the Holders of a majority of Registrable Securities, and shall cause such investment banking firm to perform such determination and notify the Company and each Holder of the results of determination no later than five (5) Business Days from the time such calculation was submitted to it by the Company.
Appears in 1 contract
Sources: Waiver and Amendment Agreement (Integral Vision Inc)
Registration Default. If (a) The Company agrees that, in the event that (i) the Registration Statement is has not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the CommissionSEC on or before July 11, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder 2008, or (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure ii) if effectiveness of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if is suspended at such any time all of the Conversion Shares are freely saleable other than pursuant to Rule 144(k)a Suspension Notice while any Registrable Securities remain outstanding (each, shall not be a deemed to be a “Registration Default”, and July 11, 2008 or the time when the Registration Statement is suspended, as the case may be, the “Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"Date”), the Company shall make a pay an aggregate of $80,000 to the Holders for each thirty-day period after such Registration Default Date until July 11, 2009 during which the Registration Default remains uncured, and thereafter the Company shall pay an aggregate of $500,000 to the Holders for each six-month period (such six-month period or thirty-day period, the “Liquidated Damages Period”) until June 30, 2014 during which the Registration Default remains uncured; each such cash payment to each Holder equal to such Holder's shall be made on a pro rata share (based basis in accordance with each Holder’s percentage holding of the then outstanding Registrable Securities and, in the case of amounts accruing after July 11, 2009 shall be payable on the aggregate number last day of Registrable Securities held by such six-month period; provided, however, that if a Holder fails to provide the Company with any information that is required to be provided in the Registration Statement with respect to such Holder as of set forth herein, then the Registration DefaultDefault Date as to such Holder shall be extended until five (5) business days following the date of $.0084 receipt by the Company of such required information; provided further that the amount payable to any Holder hereunder for each Conversion Share outstanding any partial Liquidated Damages Period shall be prorated for each thirty (30) day period or part thereof in the number of actual days during such Liquidated Damages Period during which a Registration Default exists. Each such remains uncured.
(b) The Company shall deliver said cash payment to the Holders by the seventh business day after the Registration Default and for any subsequent Liquidated Damages Period, the Company shall be made within five (5) Business Days following make said cash payment no later than the last seventh business day after the end of each calendar month such monthly Liquidated Damages Period. If the Company fails to pay said cash payment to the Holders in which a full by the seventh business day after the Registration Default existed. Any or the end of such payment shall Liquidated Damages Period, as the case may be, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be in addition to any other remedies available to each Holder at law or in equity, whether pursuant paid by applicable law) to the terms hereof or otherwiseHolders, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.
Appears in 1 contract
Sources: Equity Registration Rights Agreement (Hi-Tech Wealth Inc.)
Registration Default. If the Registration Statement covering the Registrable Securities or the Additional Registrable Securities (as defined in Section 2(d) hereof) required to be filed by the Company pursuant to Section 2(a) or 2(d) hereof, as the case may be, is not (i) filed with the Registration Statement is not filed on Commission within the time required by the terms of this Agreement or before the Filing Deadline or (ii) declared effective by the Commission within the time required by the terms of this Agreement (either of which, without duplication, an "Initial Date"), then the Company shall make the payments to IFT as provided in the next sentence as liquidated damages and not as a penalty. The amount to be paid by the Company to IFT shall be determined as of each Computation Date (as defined below), and such amount shall be equal to 2% (the "Liquidated Damage Rate") of the Stated Value per share of all shares of Series B Preferred Stock and all shares of Series C Preferred Stock outstanding from the Initial Date to the first Computation Date and for each Computation Date thereafter, calculated on or before a pro rata basis to the date on which the Registration Deadline, Statement is filed with (in the event of an Initial Date pursuant to (b) (i) above) or declared effective by (in the event of an Initial Date pursuant to (b) (ii) above) the Commission (the "Periodic Amount"); provided, however, that if any Liquidated Damages are payable, then the Liquidated Damages shall not be less than Forty Thousand Dollars ($40,000). The full Periodic Amount shall be paid by the Company to IFT by wire transfer of immediately available funds within three days after each Computation Date. As used in this Section 2(b), "Computation Date" means the date which is 30 days after the Initial Date and, if the Registration Statement required to be filed by the Company pursuant to Section 2(a) has not theretofore been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under each date which is 30 days after the previous Computation Date until such Registration Statement is so declared effective. Notwithstanding the above, if the Registration Statement for any reason not within covering the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, Additional Registrable Securities (ivas defined in Section 2(d) the Company fails to submit a request for acceleration within the time frames required hereby, or (vhereof) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed by the Company pursuant to Section 2(a) or (2d) hereof, as the case may be, is not filed with the Commission within the time required by the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default")this Agreement, the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equitydefault of this Registration Rights Agreement, whether pursuant to the terms hereof or otherwiseas amended.
Appears in 1 contract
Sources: Registration Rights Agreement (Network Connection Inc)
Registration Default. If (a) Cash payments ("Registration Penalties") shall accrue as follows if any of the following events occur (each such event in clauses (i) through (iv) below being herein called a "Registration Default"):
(i) the Shelf Registration Statement required by this Agreement is not filed with the Commission on or before prior to ninety (90) days after the Filing Deadline or Merger Effective Date;
(ii) the Shelf Registration Statement required by this Agreement is not declared effective by the Commission on or before prior to one hundred fifty (150) days after the Merger Effective Date;
(iii) if not registered by the Shelf Registration DeadlineStatement, the Warrants and/or Warrant Shares are not registered under the 2006 Registration Statement, and any post-effective amendment thereto is not effective, within the time periods set forth in (i) and (ii) above; or
(iv) if after the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) required by this Agreement has been declared effective by the CommissionCommission but (A) such Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, sales if the Warrants and/or Warrant Shares are registered thereunder) thereafter ceases to be effective or (B) the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or the related prospectus ceases to be usable in connection with resales of Registrable Securities cannot during the period ending on the first anniversary of the Merger Effective Date (including, without limitation, because of a failure to keep such Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) effective, a failure to disclose such information as is necessary for sales to be made by a Holder under the pursuant to such Shelf Registration Statement for any reason not within (or the exclusive control of such Holder (other than such post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or a failure to register sufficient Registrable Securities as are then freely saleable pursuant to Rule 144(kSecurities)); provided, that the failure . Each of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be foregoing will constitute a Registration Default hereunder, (iii) whatever the Common Stock ceases to be listed on reason for any such event and whether it is voluntary or involuntary or is beyond the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) control of the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to operation of law or as a result of any action or inaction by the terms of paragraph 4(k) below is not filed on or before Commission. Registration Penalties shall accrue from and including the date required by on which any such paragraph (each Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, at a rate of $0.0025 per Registrable Security which is the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as subject of the Registration Default. A Registration Default referred to in Section 3.3(a)(iv) hereof shall be deemed not to have occurred and be continuing in relation to the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or the related prospectus if such Registration Default has occurred solely as a result of $.0084 the filing of a post-effective amendment to the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus; provided, however, that in any case if the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or the related prospectus shall not be usable for each Conversion Share outstanding for each thirty (30) day a continuous period or part thereof in which excess of 30 days, a Registration Default exists. Each such payment shall be made within five deemed to have occurred effective as of the first day the Shelf Registration Statement (5or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) Business Days following or the last related prospectus shall cease to be usable and the Registration Penalties shall be payable in accordance with the above paragraph from such day of each calendar month in which a that the Registration Default existed. Any such payment shall be in addition deemed to any other remedies available have occurred until such Registration Default is cured.
(b) Any accrued and unpaid amounts of Registration Penalties due pursuant to each Holder at law Section 3.3(a) will be payable on the due date of the Company's next following quarterly or in equity, whether annual report (whichever may first occur) to the Commission pursuant to the terms hereof or otherwiseExchange Act. The amount of the Registration Penalties will be determined by multiplying $0.0025 by the number of outstanding Registrable Securities subject to the Registration Default, and further multiplied by a fraction, the numerator of which is the number of days such Registration Default was applicable during such period, and the denominator of which is 90.
Appears in 1 contract
Sources: Registration Rights Agreement (Jefferies & Company, Inc.)
Registration Default. If (a) Cash payments (“Registration Penalties”) shall accrue as follows if any of the following events occur (each such event in clauses (i) through (iv) below being herein called a “Registration Default”):
(i) the Shelf Registration Statement required by this Agreement is not filed with the Commission on or before prior to ninety (90) days after the Filing Deadline or Merger Effective Date;
(ii) the Shelf Registration Statement required by this Agreement is not declared effective by the Commission on or before prior to one hundred fifty (150) days after the Merger Effective Date;
(iii) if not registered by the Shelf Registration DeadlineStatement, the Warrants and/or Warrant Shares are not registered under the 2006 Registration Statement, and any post-effective amendment thereto is not effective, within the time periods set forth in (i) and (ii) above; or
(iv) if after the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) required by this Agreement has been declared effective by the CommissionCommission but (A) such Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, sales if the Warrants and/or Warrant Shares are registered thereunder) thereafter ceases to be effective or (B) the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or the related prospectus ceases to be usable in connection with resales of Registrable Securities cannot during the period ending on the first anniversary of the Merger Effective Date (including, without limitation, because of a failure to keep such Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) effective, a failure to disclose such information as is necessary for sales to be made by a Holder under the pursuant to such Shelf Registration Statement for any reason not within (or the exclusive control of such Holder (other than such post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or a failure to register sufficient Registrable Securities as are then freely saleable pursuant to Rule 144(kSecurities)); provided, that the failure . Each of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be foregoing will constitute a Registration Default hereunder, (iii) whatever the Common Stock ceases to be listed on reason for any such event and whether it is voluntary or involuntary or is beyond the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) control of the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to operation of law or as a result of any action or inaction by the terms of paragraph 4(k) below is not filed on or before Commission. Registration Penalties shall accrue from and including the date required by on which any such paragraph (each Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, at a rate of $0.0025 per Registrable Security which is the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as subject of the Registration Default. A Registration Default referred to in Section 3.3(a)(iv) hereof shall be deemed not to have occurred and be continuing in relation to the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or the related prospectus if such Registration Default has occurred solely as a result of $.0084 the filing of a post-effective amendment to the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus; provided, however, that in any case if the Shelf Registration Statement (or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) or the related prospectus shall not be usable for each Conversion Share outstanding for each thirty (30) day a continuous period or part thereof in which excess of 30 days, a Registration Default exists. Each such payment shall be made within five deemed to have occurred effective as of the first day the Shelf Registration Statement (5or the post-effective amendment to the 2006 Registration Statement, if the Warrants and/or Warrant Shares are registered thereunder) Business Days following or the last related prospectus shall cease to be usable and the Registration Penalties shall be payable in accordance with the above paragraph from such day of each calendar month in which a that the Registration Default existed. Any such payment shall be in addition deemed to any other remedies available have occurred until such Registration Default is cured.
(b) Any accrued and unpaid amounts of Registration Penalties due pursuant to each Holder at law Section 3.3(a) will be payable on the due date of the Company’s next following quarterly or in equity, whether annual report (whichever may first occur) to the Commission pursuant to the terms hereof or otherwiseExchange Act. The amount of the Registration Penalties will be determined by multiplying $0.0025 by the number of outstanding Registrable Securities subject to the Registration Default, and further multiplied by a fraction, the numerator of which is the number of days such Registration Default was applicable during such period, and the denominator of which is 90.
Appears in 1 contract
Registration Default. If The Company further agrees that, in the event that (ia) the Registration Statement is (i) has not been filed on or before with the SEC by the Required Filing Deadline or Date, (ii) has not been declared effective by the Commission on SEC with respect to all of the Registrable Securities by the Required Effectiveness Date or before the Registration Deadline, (iiiii) after the Registration Statement has been is declared effective by the CommissionSEC, sales is suspended by the Company or ceases to remain continuously effective at all times during the Registration Period as to all applicable Registrable Securities for which such Registration Statement is required to be effective, other than, in each case, within the time period(s) permitted by Section 2.7(b), or (b) the Company has failed to perform its obligations set forth in Section 2.4 within the time periods required therein (each such event referred to in clauses (a)(i), (ii) and (iii) and clause (b), a “Registration Default”), for all or part of one or more thirty-day periods (each a “Penalty Period”) during which the Registration Default remains uncured, the Company shall pay to the Holders, pro rata to their holdings of Registrable Securities cannot be made by a Holder under Securities, 1.50% of the Purchase Price (the “Penalty”) for each Penalty Period (or partial Penalty Period) during which the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k))Default remains uncured; provided, however that if the primary cause of a Registration Default is (i) the Holders’ failure to provide the Company with any information that is required to be provided in the applicable Registration Statement with respect to the Holders as set forth herein, then the commencement of the Penalty Period described above shall be extended until five Business Days following the date of receipt by the Company of such required information or (ii) not the result of the Company’s action or omission or is the result of the Holder’s non-payment of the Registration Statement Expenses, then there should be no Penalty incurred pursuant to remain effective Section 2.1. The Company shall make any such required payments by wire transfer of immediately available funds to the accounts designated by the Holders, on or before the fifth Business Day after the two (2) year anniversary end of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) each applicable Penalty Period. If the Company fails to submit a request for acceleration within make any such payment in full by the time frames required hereby, or (v) an amendment or supplement to fifth Business Day after the Registration Statement, or a new registration statement, required to be filed pursuant to the terms end of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default")Penalty Period, the Company shall make a cash payment pay interest on such overdue amounts at the highest rate then accruing with respect to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as outstanding Indebtedness of the Registration DefaultCompany (or such lesser maximum amount that is permitted to be paid by applicable law) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof to the Holders, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in which a Registration Default existsfull. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment The cash payments provided by this Section 2.3 shall be in addition to any to, and not in lieu of, such other remedies available to damages the Holders may establish in connection with each Holder at law or in equity, whether pursuant to the terms hereof or otherwiseRegistration Default.
Appears in 1 contract
Sources: Securities Purchase Agreement (Lithium Technology Corp)
Registration Default. If The parties hereto agree that the Holder of Registrable Securities will suffer damages and that it would not be feasible to ascertain the extent of such damages with precision, if:
(i) the Registration Statement is not filed Company has failed to perform its obligation, set forth in the first sentence of Section 2.1(a) hereof, on or before prior to the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, ;
(ii) after the a Shelf Registration Statement has not been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within Securities Act on or prior to the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k))Effectiveness Deadline; provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, or
(iii) the Common Stock ceases to be listed on the Nasdaq National Marketexcept for a Suspension Period as permitted in Section 2.1(b) hereof, the Nasdaq SmallCap Market or Company has failed to maintain the New York Stock Exchange, (iv) effectiveness of the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Shelf Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each Statement Each event described in any of the foregoing clauses (i), (ii), ) through (iii), (iv) and (v) being is individually referred to herein as a "“Registration Default".” For purposes of this Agreement, each Registration Default set forth above shall begin and end on the dates set forth in the table set forth below:
(i) Filing Deadline the date a Registration Statement is filed
(ii) Effectiveness Deadline the date a Registration Statement becomes effective under the Securities Act or the Registration Period ends
(iii) Non-effectiveness of the Shelf Registration Statement, absent allowable Suspension Period the date a Registration Statement becomes effective under the Securities Act or the Registration Period ends Commencing on (and including) any date that a Registration Default has begun and ending on (but excluding) the next date on which there are no Registration Defaults that have occurred and are continuing (a “Registration Default Period”), the Company shall make a cash payment be required to pay to the Holder of Registrable Securities in respect of each Holder month in the Registration Default Period an amount equal to such Holder's pro rata share one-half of one percent (based on 1/2%) of the aggregate number market value of the Registrable Securities held by such Holder as (the “Default Payment”), payable in cash. Payment shall be due at the end of each month during the Registration Default Period, with a pro rated portion of the Registration Default) payment being due for any portion of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in a month during which there is a Registration Default existsPeriod. Each such payment For the purposes of this section, the “aggregate market value” shall be made within five determined by the volume-weighted 20-day average trading price of the Common Stock as quoted on the primary trading market (5as determined by the monthly average volume of trading in the Common Stock) Business Days following for the last Common Stock on the date ten (10) days before payment is due (if such date is a day of each calendar month in on which a Registration Default existed. Any such payment the primary trading market is closed, then the date shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof or otherwisenext trading day on which the primary trading market is open).
Appears in 1 contract
Sources: Registration Rights Agreement (Mines Management Inc)
Registration Default. If (i) the Registration Statement is not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement on Form S-3 filed pursuant to Section 2(a) to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares issued or issuable upon conversion of the Preferred Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k3(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration DefaultREGISTRATION DEFAULT"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding , for each thirty (30) day period or part thereof in which a Registration Default exists, equal to the product of (A) the Per Share Default Payment Amount times (B) the sum of (I) the number of Conversion Shares into which the Preferred Shares then held by such Holder are convertible at the Conversion Price then in effect plus (II) the number of Warrant Shares for which the Investor Warrant then held by such Holder are exercisable at the Exercise Price then in effect, in each case without regard to any limitation on such conversion or exercise contained in the Articles of Amendment, the Investor Warrant or any other Transaction Documents. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof hereof, the Securities Purchase Agreement, the Articles of Amendment, or otherwise. Notwithstanding the foregoing, a Registration Default under clauses (ii), (iii) or (v) shall not be deemed to be a Fundamental Change (under and as defined in the Articles of Amendment) giving rise to a Mandatory Redemption right under the Articles of Amendment provided the Company has used its best efforts to prevent the occurrence of such Registration Default and continues after the occurrence thereof to use its best efforts to cure such Registration Default.
Appears in 1 contract
Registration Default. If In the event that:
(ia) within 90 days after the Issue Date, neither the Exchange Offer Registration Statement nor the Shelf Registration Statement has been filed with the Commission;
(b) within 150 days after the Issue Date, the Exchange Offer Registration Statement has not been declared effective;
(c) within 180 days after the Issue Date, neither the Registered Exchange Offer has been consummated nor the Shelf Registration Statement has been declared effective;
(d) within 60 days of the day on which the obligation to file the Shelf Registration Statement pursuant solely to Section 3(a)(iii), such Shelf Registration Statement is not filed on or before with the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, Commission; or
(iie) after either the Exchange Offer Registration Statement or the Shelf Registration Statement has been declared effective by the Commissioneffective, sales of Registrable Securities cannot be made by a Holder under the such Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock thereafter ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market effective or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within be usable in connection with resales of Securities or Exchange Securities in accordance with and during the time frames required herebyperiods specified in this Agreement, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed other than as permitted pursuant to the terms of paragraph 4(kSection 3(b)(ii) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (iand Section 4(k)(ii), (ii), (iii), (iv) and (v) being referred to herein as each such event a "“Registration Default"), the Company shall make a cash payment to ” and each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in during which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which has occurred and is continuing, a “Registration Default existed. Any Period”), then, as liquidated damages for such payment shall be Registration Default, additional interest will accrue on the aggregate principal amount of the Securities and Exchange Securities (in addition to the stated interest on the Securities and Exchange Securities) from and including the date on which any other remedies available such Registration Default shall occur to, but excluding the date on which all Registration Defaults have been cured. Additional interest will accrue at an initial rate of 0.25% per annum, which rate shall increase by 0.25% per annum for each subsequent 90-day period during which such Registration Default continues up to each Holder a maximum of 1.00% per annum. If, after the cure of all Registration Defaults then in effect, there is a subsequent Registration Default, the rate of additional interest for such subsequent Registration Default shall initially be 0.25% regardless of the rate in effect with respect to any prior Registration Default at law or in equity, whether pursuant to the terms hereof or otherwisetime of cure of such Registration Default.
Appears in 1 contract
Sources: Registration Rights Agreement (Intertape Woven Products Services S.A. De C.V.)
Registration Default. If The Company further agrees that, in the event that (a) the First or Second Registration Statements (i) have not been filed with the Registration Statement is not filed on SEC within 60 days after the First or before the Filing Deadline or declared effective by the Commission on or before the Registration DeadlineSecond Closing Date, respectively, (ii) after the Registration Statement has have not been declared effective by the CommissionSEC by the First or Second Required Effectiveness Dates, sales respectively, or (iii) after either of the First or Second Registration Statements are declared effective by the SEC, either or both are suspended by the Company or cease to remain continuously effective at all times during the Registration Period as to all applicable Registrable Securities cannot for which such Registration Statement is required to be made effective, other than, in each case, within the time period(s) permitted by Section 6.7(b), or (b) the Company has failed to perform its obligations set forth in Section 6.4 within the time periods required therein (each such event referred to in clauses (a)(i), (ii) and (iii) and clause (b), a Holder under “Registration Default”), for all or part of one or more thirty-day periods (each a “Penalty Period”) during which the Registration Statement for any reason not within Default remains uncured, the exclusive control Company shall pay to each Purchaser 1% of such Holder Purchaser’s aggregate purchase price of its Securities for each Penalty Period (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k))or partial Penalty Period) during which the Registration Default remains uncured; provided, however, that if the failure primary cause of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) is a Purchaser’s failure to provide the Common Stock ceases Company with any information that is required to be listed on provided in the Nasdaq National Marketapplicable Registration Statement with respect to -14- such Purchaser as set forth herein, then the Nasdaq SmallCap Market or commencement of the New York Stock ExchangePenalty Period described above shall be extended until two Business Days following the date of receipt by the Company of such required information; and provided, (iv) further, that in no event shall the Company be required hereunder to pay to any Purchaser pursuant to this Agreement an aggregate amount that exceeds 10% of the aggregate First Closing Purchase Price and, if applicable, Second Closing Purchase Price paid by such Purchaser for such Purchaser’s Securities. The Company shall deliver said cash payment to the Purchaser by the fifth Business Day after the end of each such Penalty Period. If the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement pay said cash payment to the Registration Statement, or a new registration statement, required to be filed pursuant to Purchasers in full by the terms fifth Business Day after the end of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default")Penalty Period, the Company shall make 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 Purchasers, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held payments provided by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment this Section 6.3 shall be in addition to any to, and not in lieu of, such other remedies available to damages as each Holder at law or Purchaser may establish in equity, whether pursuant to the terms hereof or otherwiseconnection with each Registration Default.
Appears in 1 contract
Sources: Securities Purchase Agreement
Registration Default. If (i) the Registration Statement is not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the a Registration Statement has been declared effective by the Commission, sales of Registrable Securities (other than such Registrable Securities as are then freely saleable pursuant to Rule 144) cannot be made by a Holder under the a Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, except during the period that the failure of the Company is updating a Registration Statement due to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed information required to be a Registration Default hereunder, (iii) provide regarding the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required herebyCompany’s annual financial information), or (viii) an amendment or supplement to the a Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(kSection 3(j) below below, is not filed on or before the date required by such paragraph section (each of the foregoing clauses (i), (ii), (iii), (iv) and (viii) being referred to herein as a "“Registration Default"”), the Company shall make a cash payment payments to each Holder who provides to the Company reasonable written evidence of its ownership of Registrable Securities at the time of each such Registration Default (including the number of Registrable Securities held by such Holder as of each such date) equal to such Holder's ’s pro rata share (based on the aggregate number of Registrable Securities then held by or issuable to such Holder as of the occurrence of the Registration DefaultDeadline) equal to ¾ of one percent (0.75%) of $.0084 the aggregate Purchase Price paid by such Holder for each Conversion Share outstanding such Unit Shares for each thirty (30) day period or part thereof (but not pro rated for partial periods) in which a Registration Default exists, but up to a maximum payment of 5% of the aggregate Purchase Price paid by such Holder for such Unit Shares for each thirty (30) day period (but not pro rated for partial periods). Notwithstanding any provision of this Agreement to the contrary, the Company shall be permitted to suspend the Registration Statement for one or more periods (provided that the aggregate length of such suspension shall not exceed ten (10) consecutive Business Days or an aggregate of twenty (20) Business Days in any 365 day period, with at least thirty (30) calendar days between each such suspension) the actions required under Section 2(a) of this Agreement to the extent that the Board of Directors of the Company concludes reasonably and in good faith that the disclosure of information in the prospectus is not in the best interest of the Company. Each such payment required to be made under this Section 2(c) shall be made within five ten (510) Business Days following the last day of each calendar month in which a Registration Default existedexists; provided that the Holder has provided written evidence of its ownership as specified above. Any such payment made following such ten (10) Business Day window shall be subject to interest at the lower of ten percent (10%) and the maximum rate permitted by applicable law. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof hereof, the Subscription Agreements or otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (VeruTEK Technologies, Inc.)
Registration Default. If (i) the Registration Statement is not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares issued or issuable upon conversion of the Preferred Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based on the aggregate number of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding , for each thirty (30) day period or part thereof in which a Registration Default exists, equal to the product of (A) the Per Share Default Payment Amount times (B) the sum of (I) the number of Conversion Shares into which the Preferred Shares then held by such Holder are convertible at the Conversion Price then in effect plus (II) the number of Warrant Shares for which the Warrants then held by such Holder are exercisable at the Exercise Price then in effect, in each case without regard to any limitation on such conversion or exercise contained in the Articles of Amendment, the Warrants or any other Transaction Documents. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof hereof, the Securities Purchase Agreement, the Articles of Amendment, or otherwise. Notwithstanding the foregoing, a Registration Default under clauses (ii), (iii) or (v) shall not be deemed to be a Fundamental Change (under and as defined in the Articles of Amendment) giving rise to a Mandatory Redemption right under the Articles of Amendment provided the Company has used its best efforts to prevent the occurrence of such Registration Default and continues after the occurrence thereof to use its best efforts to cure such Registration Default.
Appears in 1 contract
Registration Default. (a) If (i) the Shelf Registration Statement is has not filed been declared effective on or before 5:00 p.m. eastern time on the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control Effective Date and there are as of such Holder (other than such date any outstanding Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default")Securities, the Company shall make become obligated to pay to each Investor who continues to hold Registrable Securities on the Effective Date a cash payment to each Holder equal to such Holder's pro rata share one percent (based 1%) of the last reported sales price of one Common Share on the aggregate trading day immediately preceding the Closing Date, as reported by the Nasdaq Stock Market (the "Last Reported Sales Price"), multiplied by the number of Registrable Securities held by such Holder Investor as of the Effective Date. In addition, until the Shelf Registration DefaultStatement has been declared effective, the Company shall become obligated to pay to each Investor who continues to hold Registrable Securities on the first day of each calendar month after the Effective Date (each a "Subsequent Computation Date") a cash payment equal to one percent (1%) of $.0084 for the Last Reported Sales Price multiplied by the number of Registrable Securities held by such Investor as of such Subsequent Computation Date.
(b) If the Company exceeds the Maximum Blackout Periods permitted under this Agreement and there are then outstanding any Registrable Securities included on the Shelf Registration Statement, the Company shall become obligated to pay to each Conversion Share outstanding for Investor who continues to hold Registrable Securities included on the Shelf Registration Statement on the date that the Maximum Blackout Periods are exceeded (the "First Blackout Penalty Date") a cash payment equal to one percent (1%) of the Last Reported Sales Price multiplied by the number of any such Registrable Securities held by such Investor as of such First Blackout Penalty Date. In addition, until use of the prospectus contained within the Shelf Registration Statement is no longer suspended pursuant to such Blackout Period, the Company shall become obligated to pay to each thirty Investor who continues to hold Registrable Securities included in the Shelf Registration Statement on the first day of each calendar month after the First Blackout Penalty Date (30each a "Subsequent Blackout Penalty Date") day period or part thereof in which a Registration Default exists. Each cash payment equal to one percent (1%) of the Last Reported Sales Price multiplied by the number of such payment remaining Registrable Securities held by such Investor as of such Subsequent Blackout Penalty Date.
(c) All payments made under this Section 8 shall be made within five (5) Business Days following business days after the last day Effective Date, the First Blackout Penalty Date, or the relevant Subsequent Computation Date or Subsequent Blackout Penalty Date, as the case may be, and shall be deemed and considered for all purposes to be liquidated damages and not a penalty. As expressed in Section 20 of this Agreement, it is agreed that the payments made to each calendar month in which a Registration Default existed. Any Investor under this Section 8 shall not constitute such payment Investor's exclusive remedy, and such payments shall be in addition to any other remedies available to each Holder at law or in equity, whether pursuant to the terms hereof or otherwisesuch Investor under applicable law.
Appears in 1 contract
Sources: Registration Rights Agreement (Capital Environmental Resource Inc)
Registration Default. If a Registration Statement covering all of the Registrable Securities (i) the Registration Statement is has not filed on or before the Filing Deadline or declared effective by the Commission on or before the Registration Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot SEC on or prior to the 180th day following the Closing Date (the "Effective Deadline") or (ii) has been declared effective but shall thereafter cease to be made effective or fail to be usable for its intended purpose without being succeeded immediately by a Holder under the Registration Statement for any reason not post-effective amendment that cures such failure and that is declared effective within the exclusive control of such Holder thirty (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (230) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph days (each of the foregoing such event referred to in clauses (i), ) and (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make hereby agrees to pay to the Subscriber a cash payment fee Fifty Thousand Dollars ($50,000) per month, pro rated for any portion thereof, during each month or portion thereof that the Registration Default continues without cure. If there occurs a Registration Default and the Company (A) fails to each Holder equal to such Holder's pro rata share file, on a timely basis, any periodic or current report required by the Exchange Act or regulations promulgated thereunder, (based on B) allows any class of its securities of which the aggregate number of Registrable Securities held by are a part to become de-listed on a national securities exchange or excluded from or disqualified from trading through an inter-dealer quotation system or (C) otherwise fails to comply with any applicable federal securities laws and regulations, Blue Sky Laws or listing or inclusion requirements of a national securities exchange or inter-dealer quotation system (each such Holder as event referred to in clauses (A), (B), and (C), a "Non-Compliance Condition"), the Company hereby agrees to pay to the Subscriber an additional fee of Fifty Thousand Dollars ($50,000) per month (the "Non-Compliance Fee") pro rated for any portion thereof, during each month or portion thereof that the Registration Default and Non-Compliance Condition continue without cure. Notwithstanding the foregoing, the Non-Compliance Fee shall not be payable in respect of any particular Non-Compliance Condition if the Company provides written notice to the Subscriber of the Registration Default) occurrence of $.0084 for each Conversion Share outstanding for each the particular Non-Compliance Condition within thirty (30) day period or part thereof calendar days of the occurrence of the particular Non-Compliance Condition. The fees provided in which a Registration Default exists. Each such payment this Section 6 shall be made within five (5) Business Days following payable on the last business day of each calendar month in which a Registration Default existedto Subscriber at the office designated for the Subscriber to receive notices pursuant to Section 15 of this Agreement. Any unpaid balance of such payment fees shall accrue interest at an annual rate of 15%, shall be in addition payable monthly on the last business day of each month and compounded monthly. The Subscriber's rights to fees pursuant to this Section 6 represent a lost opportunity cost and shall not be construed as liquidated damages and, further, shall not serve to limit or replace any other remedies available to each Holder at law or in equity, whether pursuant equity arising from any failure by the Company to the terms hereof or otherwiseperform its obligations under this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Thomas Equipment, Inc.)
Registration Default. If The parties hereto agree that the Holders will suffer damages if the Company fails to fulfill its obligations under this Section 2.1 and that, in such case, it would not be feasible to ascertain the extent of such damages with precision. Accordingly, subject to Section 2.1(b), if:
(i) the Company does not file a Registration Statement is not filed covering all the Registrable Securities on or before the Filing Deadline or Deadline;
(ii) such Registration Statement is not declared effective by the Commission on or before the Registration Effectiveness Deadline, (ii) after the Registration Statement has been declared effective by the Commission, sales of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, ;
(iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, Company extends any Suspension Period (as defined below) beyond forty-five (45) days during any consecutive one hundred eighty (180) day period; or
(iv) a Registration Statement is filed and declared effective but, during the Company fails applicable Effectiveness Period, a Registration Statement is not effective for any reason or the Prospectus contained therein is not available for use for any reason, in each case other than due to submit a request Suspension Period as provided in Section 2.3(c), for acceleration its intended purpose without such disability being cured within the time frames required herebyten (10) Business Days by an effective post-effective amendment to such Registration Statement, or (v) an amendment or a supplement to the Registration StatementProspectus, or a new registration statement, required to be report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the terms Exchange Act that cures such failure or the effectiveness of paragraph 4(k) below is not filed on or before the date required by such paragraph Registration Statement; (each of the such event referred to in foregoing clauses (i) through (iv), (iia “Registration Default”), (iii)then for so long as any Convertible Notes, (iv) Series 1 Preferred Stock or Registrable Securities are outstanding, in such event as partial relief for the damages to any Holder by reason of any such delay in or reduction of its ability to sell any Registrable Securities and (v) being referred to herein not as a "Registration Default"penalty (which remedy will not be exclusive of any other remedies available at law or equity), the Company shall make a cash payment hereby agrees to pay to each Holder of Convertible Notes, Series 1 Preferred Stock or Registrable Securities then outstanding an aggregate amount equal to 0.25% per year on all outstanding Convertible Notes (and all outstanding shares of Series 1 Preferred Stock and Common Stock to the extent any Convertible Notes have been exchanged pursuant to the Purchase Agreement or converted prior to the occurrence of the Registration Default and such Holder's pro rata share Preferred Conversion Shares or shares of Common Stock, as applicable, remain Registrable Securities) held by such Holders for the first 90 days after such Registration Default and then, if such Registration Default is then continuing, 0.50% per year on all outstanding Convertible Notes (and all outstanding shares of Series 1 Preferred Stock or Common Stock to the extent any Convertible Notes have been exchanged pursuant to the Purchase Agreement converted prior to the occurrence of the Registration Default and such Preferred Conversion Shares or shares of Common Stock, as applicable, remain Registrable Securities) held by such Holders (such payment, “Additional Amounts”); provided that any payment on shares of Series 1 Preferred Stock or Common Stock will be calculated based on the aggregate number of Registrable Securities held by such Holder as principal amount of the Registration Default) Convertible Notes as a result of $.0084 for each exchange or conversion of which such shares of Series 1 Preferred Stock or Common Stock, as applicable, have been issued to the extent such Preferred Conversion Share outstanding for each thirty (30) day period Shares or part thereof in which a shares of Common Stock constitute Registrable Securities; provided, further, that any such Additional Amounts will cease to accrue to Holders hereunder when any such Registration Default existswill cease, be remedied or be cured. Each such payment In no event shall be made within five (5) Business Days following Additional Amounts accrue under the last day terms of each calendar month this Agreement at a rate in which a Registration Default existed. Any such payment shall be in addition excess of 0.50% per annum pursuant to this Agreement when combined with any other remedies available to each Holder at law or in equity, whether Additional Interest payable pursuant to the terms hereof Indenture, regardless of the number of events or otherwisecircumstances giving rise to the requirement to pay such Additional Amounts.
Appears in 1 contract
Sources: Resale Registration Rights Agreement (NantHealth, Inc.)
Registration Default. If (a) Additional dividends (the “Additional Dividends”) with respect to the Series A Preferred Stock shall accrue in accordance with the Certificate of Designations relating to such Series A Preferred Stock and additional interest (the “Additional Interest”) with respect to the Notes shall accrue in accordance with its terms if any of the following events occur during such time as there are Registrable Securities issued or issuable upon conversion of the Series A Preferred Stock or the Notes (each such event in clauses (i) through (iii) below being hereinafter called a “Registration Default”): (i) the Shelf Registration Statement is has not been filed with the SEC on or before the Filing Deadline or declared effective by 90th calendar day following the Commission on or before the Registration Deadline, Closing Date; (ii) after the Shelf Registration Statement has not been declared effective by the Commission, sales SEC on or before the 180th calendar day after the date of Registrable Securities cannot be made by a Holder under the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure filing of the Shelf Registration Statement to remain effective after the two (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, Statement; or (iii) the Common Stock Shelf Registration Statement is declared effective by the SEC but the Shelf Registration Statement thereafter ceases to be listed on the Nasdaq National Marketeffective at any time during which Registrable Securities are outstanding.
(b) If a Registration Default exists and is continuing, the Nasdaq SmallCap Market or the New York Stock Exchange, and either (ivi) the Company fails to submit a request for acceleration within Shelf Registration Statement has not been declared effective by the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed SEC on or before the date required 365th calendar day after the Closing Date or (ii) the Shelf Registration Statement is declared effective by the SEC but the Shelf Registration Statement thereafter ceases to be effective and such paragraph (each failure to be effective continues for a period of 90 consecutive calendar days, or more than 120 days in any 365 day period, the holders of the foregoing clauses Series A Preferred Stock and the Notes shall have the right on such 365th or 91st or 121st day, as the case may be, to require the Company to redeem the outstanding shares of Series A Preferred Stock in accordance the Certificate of Designations relating to such Series A Preferred Stock or the Notes in accordance with its terms (the “Registration Default Redemption Right”).
(c) Any Registration Default shall cease to continue, and all Additional Dividends and Additional Interest shall cease to accrue and the Registration Default Redemption Right shall cease be exercisable, upon the earlier of (i), ) the date on which such Registration Default is cured or (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), the Company shall make a cash payment to each Holder equal to such Holder's pro rata share (based date on the aggregate number of which there are no longer any Registrable Securities held by such Holder as issued or issuable upon conversion of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period Series A Preferred Stock or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equityNotes, whether pursuant to the terms hereof or otherwiseas applicable.
Appears in 1 contract
Sources: Investor Rights Agreement (Korn Ferry International)
Registration Default. If In the event that (i) the registration statement to be filed by the Company pursuant to this Section 2 is not filed with the SEC within forty-five (45) days from receipt of the Demand Notice, (ii) such Registration Statement is not filed on or before the Filing Deadline or declared effective by the SEC within the earlier of one hundred twenty (120) days from receipt of the Demand Notice or five (5) days of clearance by the Commission on to request effectiveness or before the Registration Deadline, (iiiii) after the such Registration Statement has been declared is not maintained as effective by the Commission, sales of Registrable Securities cannot be made by a Holder under Company for the Registration Statement for any reason not within the exclusive control of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two (2period set forth in Section 2(c) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(k), shall not be a deemed to be a Registration Default hereunder, (iii) the Common Stock ceases to be listed on the Nasdaq National Market, the Nasdaq SmallCap Market or the New York Stock Exchange, (iv) the Company fails to submit a request for acceleration within the time frames required hereby, or (v) an amendment or supplement to the Registration Statement, or a new registration statement, required to be filed pursuant to the terms of paragraph 4(k) below is not filed on or before the date required by such paragraph above (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as a "Registration Default"), ) then the Company shall make will pay Holder (pro rated on a daily basis) in cash payment to each Holder equal to such or, at the option of the Holder's pro rata share (, in Common Stock based upon the closing price on the aggregate number trading day prior to the date of Registrable Securities held by payment, as liquidated damages for such Holder failure and not as a penalty, two percent (2%) of the Registration Default) aggregate market value of $.0084 for each Conversion Share outstanding common stock registered for each thirty (30) day period days thereafter until such Registration Statement has been filed or part thereof in which a Registration Default existsdeclared effective, as the case may be. Each such Such payment of the liquidated damages shall be made to the Holders in cash, within five (5) Business Days following calendar days of demand, provided, however, that the last day payment of each calendar month such liquidated damages shall not relieve the Company from its obligations to register the Registrable Securities pursuant to this Section. Notwithstanding anything to the contrary contained herein, a failure to maintain the effectiveness of a filed registration statement or the ability of a Holder to use an otherwise effective registration statement to effect resales of Registrable Securities during the period after forty-five (45) days and within ninety (90) days from the end of the Company's fiscal year resulting solely from the need to update the Company's audited financial statements contained or incorporated by reference in which such registration statement shall not constitute a Registration Default existedand shall not trigger the accrual of liquidated damages hereunder. Any such If the Company does not remit the payment shall be to the Holders as set forth above, the Company will pay the Holders reasonable costs of collection, including attorneys' fees, in addition to any other remedies available to each Holder at law or in equity, whether the liquidated damages. The registration of the Registrable Securities pursuant to this provision shall not affect or limit the terms hereof Holders' other rights or otherwiseremedies as set forth in this Agreement.
Appears in 1 contract
Registration Default. If (i) the a Resale Shelf Registration Statement is not filed with the SEC on or before prior to the Filing Deadline date that is one year after the date hereof or is not declared effective by the Commission on SEC as promptly as reasonably possible thereafter (but in any event not later than 60 days after filing), or before the Registration Deadline, (ii) after the any post-effective amendment or supplement to such Resale Shelf Registration Statement has been that is required to be filed and made effective is not filed and declared effective by the CommissionSEC in accordance with Section 2.01(a)(ii), sales Section 2.01(c) or Section 2.01(e), or (ii) if a Shelf Registration has been declared or become effective but ceases to be effective or usable for the offer and sale of the Registrable Securities (without being succeeded immediately by an effective replacement registration statement), or the Shelf Registration or prospectus contained therein ceases to be usable in connection with the resales of Registrable Securities cannot be made by for a Holder period of time which exceeds sixty (60) days in the aggregate in any consecutive 12-month period because of a suspension under the Registration Statement for any reason not within the exclusive control Section 2.04, interruption under Section 2.03(b) or otherwise (each of such Holder (other than such Registrable Securities as are then freely saleable pursuant to Rule 144(k)); provided, that the failure of the Registration Statement to remain effective after the two i) or (2) year anniversary of its initial effective date thereof if at such time all of the Conversion Shares are freely saleable pursuant to Rule 144(kii), shall not be a deemed to be a “Registration Default hereunderDefault”) (provided that, (iii) if the Common Stock registration statement ceases to be listed on effective or usable for the Nasdaq National Marketoffer, the Nasdaq SmallCap Market or the New York Stock Exchange, sale and resale of Registrable Securities under clause (ivii) the Company fails solely as a result of requirement to submit file a request for acceleration within the time frames required hereby, or (v) an post-effective amendment or supplement to the Registration Statement, or a new registration statement, required prospectus to be filed pursuant make changes to the terms information regarding selling securityholders or the plan of paragraph 4(k) below is distribution provided for therein at the request of any Holder, such default shall not filed on or before the date required by such paragraph (each of the foregoing clauses (i), (ii), (iii), (iv) and (v) being referred to herein as constitute a "Registration Default"), the Company shall make a cash payment to each Holder equal Default with respect to such Holder's pro rata share ), then, as partial relief for the damages to any Holder by reason of any such delay in or reduction of its ability to sell the underlying shares of Common Stock (based on the aggregate number which remedy shall not be exclusive of Registrable Securities held by such Holder as of the Registration Default) of $.0084 for each Conversion Share outstanding for each thirty (30) day period or part thereof in which a Registration Default exists. Each such payment shall be made within five (5) Business Days following the last day of each calendar month in which a Registration Default existed. Any such payment shall be in addition to any other remedies available to each Holder at law or in equity, whether including, without limitation, specific performance or the additional obligation of the Company to register any Common Stock), the Company shall pay to each Holder of Registrable Securities relating to such Resale Shelf Registration Statement an amount in cash equal to one and one-half percent (1.5%) of the aggregate purchase price of the Registrable Securities included in such Resale Shelf Registration Statement on each of the following dates: (i) the day of a Registration Default and (ii) on the thirtieth day after the date of a Registration Default and every thirtieth day thereafter (pro-rated for periods totaling less than thirty days) until such Registration Default is cured. The payments to which a Holder shall be entitled pursuant to this Section 2.12 are referred to herein as “Registration Default Payments.” In no event shall the terms hereof aggregate amount of all Registration Default Payments payable to a Holder exceed seven and one-half percent (7.5%) of the aggregate purchase price of the Registrable Securities included in such Resale Shelf Registration Statement. Registration Default Payments shall be paid on the earlier of (I) the dates set forth above and (II) the third Business Day after the event or otherwisefailure giving rise to the Registration Default Payments is cured. In the event the Company fails to make Registration Default Payments in a timely manner, such Registration Default 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.
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Sources: Registration Rights Agreement (Lincoln Educational Services Corp)