Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance. (b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible: (i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of; (ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement; (iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration; (iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405; (v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment; (vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor; (vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and (ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement. (c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 3 contracts
Sources: Convertible Note and Warrant Purchase Agreement, Convertible Note and Warrant Purchase Agreement (The9 LTD), Convertible Note and Warrant Purchase Agreement (Ark Pacific Investment Management LTD)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable SecuritiesSecurities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of during its entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses have satisfied this clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement), or (ii) any suspension of a Registration Statement is not declared effective by the qualification Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or exemption from qualification) of any of the Registrable Securities for sale efforts therefor other than a Suspension Event in any jurisdictioncompliance with Section 6(c), at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions ceases for any reason to be effective and available to the Purchaser as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred to as “Event Date”), then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been cured. For so long as the Event has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the Effective Periodissuance of Additional Notes (as defined in the Note), upon discovery thatto the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) shall be the sole and exclusive remedy of the Purchaser under this Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or upon Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the happening requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any event such Registration Statements as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementpiggy-back rights.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 3 contracts
Sources: Purchase Agreement (Covad Communications Group Inc), Registration Rights Agreement (Covad Communications Group Inc), Registration Rights Agreement (Earthlink Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement (i) shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and, if the Company is a WKSI as of the Registrable Securities). Filing Date, shall be an automatic shelf registration statement; and (ii) shall contain (except if otherwise requested by the Electing Holders or required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the registration rights under this Agreement terminate in accordance with Section 2(b) (i) the “Effectiveness Period”). In addition, the Company shall, promptly and from time to time, file such additional Registration Statements to cover resales of any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement no later than the Filing Date with respect thereto, and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the SEC or otherwise to become effective under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible practicable after the filing thereofapplicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such the Registration Statement continuously effective under the Securities Act until such date as is at all times during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding anything to the registration obligations set forth contrary in this Section 8.162(a), if upon notice to the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statementHolders, the Company agrees to promptly (i) inform each Holder and may suspend the use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or extend the time period in which it is required to file the Registration Statement, for up to 30 days in the aggregate, in any 12-month period (iia “Suspension Period”) any if the Board of Directors of the Company determines that there is a valid business purpose for suspension of the qualification Registration Statement. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to such Registration Statement in connection with any sale or offer to sell Registrable Securities. The Company shall promptly notify the Holders when the Registration Statement may once again be used or is effective.
(or exemption from qualificationb) The registration rights granted under this Section 2 shall automatically terminate as of any the date and time at which all of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementFreely Tradable.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Daegis Inc.), Registration Rights Agreement (Daegis Inc.), Registration Rights Agreement (Unify Corp)
Registration. On the earlier of (a) 30 days following the first date on which the Partnership becomes eligible to use SEC Form S-3 or (b) the first anniversary of the Closing Date, the Partnership shall prepare and file a registration statement under the Securities Act to permit the public resale of Registrable Securities then outstanding from time to time as permitted by Rule 415 of the Securities Act with respect to all of the Registrable Securities (the “Registration Statement”). The Company shall, Registration Statement filed pursuant to this Section 2.1 shall be on such appropriate registration form of the Commission as shall be selected by the Partnership so long as it permits the continuous offering of the Registrable Securities pursuant to Rule 415 of the Securities Act or such other rule as is then applicable. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement to become effective on or as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and file with the SEC a practicable after filing. Any Registration Statement covering shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement filed pursuant to this Section 2.1 to be effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act Holders until such date as is the earlier of (xa) the date on which all Registrable Securities covered by such Registration Statement have been sold by the Holders, or (yb) the first date on which the all Registrable Securities may be sold without any restriction become eligible for sale pursuant to Rule 144 144(b)(1) under the Securities Act (the “Effective Effectiveness Period”). Such The Registration Statement shall not include any Ordinary Shares or other securities for when effective (including the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth documents incorporated therein by reference) will comply as to form in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate material respects with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, applicable requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become will not contain an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Registration Statement, in the light of the circumstances then existing;
(viii) use its best efforts to list under which a statement is made). As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two Business Days of such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositarydate, the Company Partnership shall promptly after provide the Holders with written notice of the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 3 contracts
Sources: Contribution Agreement, Registration Rights Agreement (USA Compression Partners, LP), Contribution Agreement (USA Compression Partners, LP)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best reasonable commercial efforts (i) to cause the first such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond use its reasonable commercial efforts to cause any comments received from subsequent such Registration Statement to be declared effective under the SEC within ten (10) Business Days, and (ii) Securities Act as set forth herein. . The Company shall use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities covered by such Registration Statement may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 (144(k), as determined by the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs counsel to the Company that all of pursuant to a written opinion letter to such effect, addressed and acceptable to the Registrable Securities cannotCompany's transfer agent and the affected Holders (each, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly an "Effectiveness Period").
(b) If: (i) inform each Holder and use its best efforts to file amendments any Registration Statement is not filed on or prior to the applicable Filing Date for such Registration Statement as required by the SEC and/or Statement; (ii) withdraw the a Registration Statement filed hereunder is not declared effective by the Commission by the date required hereby with respect to such Registration Statement; (iii) after a Registration Statement is filed with and file a new declared effective by the Commission, such Registration Statement ceases to be effective (by suspension or otherwise) as to all Registrable Securities to which it is required to relate at any time prior to the expiration of the Effectiveness Period applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective) for a “New Registration Statement”), period of time which shall exceed 30 days in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 aggregate per year or such other form available to register for resale the Registrable Securities more than 20 consecutive calendar days (defined as a secondary offeringperiod of 365 days commencing on the date such Registration Statement is declared effective); providedor (iv) the Common Stock is not listed or quoted, however, that prior to filing such amendment or New Registration Statement, is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall be obligated not have been able to use its best efforts to advocate with the SEC for the registration of all cure such trading suspension within 30 days of the Registrable Securities in accordance with notice thereof or list the Common Stock on another Trading Market); (any publicly-available written such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish to each Holder a Prospectus the date which such 30 day or 20 consecutive day period (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor case may reasonably request in order to facilitate the disposition be) is exceeded, or for purposes of the Registrable Securities owned by it that are included in such registration;
clause (iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which such three (3) Trading Day period is exceeded, being referred to as "Event Date"), then until the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2.0% for each thirty (30) day period (prorated for partial periods) on a daily basis of the Registration Statement cause an opinion original principal amount of legal counsel each applicable Note. While such Event continues, such liquidated damages shall be paid not less often than each thirty (30) days. Any unpaid liquidated damages as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale date when an Event has been cured by the Investor under Company shall be paid within three (3) days following the Registration Statementdate on which such Event has been cured by the Company.
(c) The Company understands that each Holder disclaims being an underwriter, but in Within three business days of the event any Holder is deemed an underwriterEffectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by Laurus and confirmation by Laurus that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to Laurus within the time frame set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Veridium Corp), Registration Rights Agreement (Veridium Corp)
Registration. (a) The Company shallAt any time and from time to time on or after the 180th day following the Closing Date, Parent agrees that, upon the written request of Stockholder from time to time (a “Demand Notice”) and subject to Sections 2.01(e) and 2.06, it will as soon promptly as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), reasonably practical prepare and file with a registration statement (which, if Parent is a well-known seasoned issuer, shall be an automatic shelf registration statement) under the SEC Securities Act (a “Registration Statement,” which term will include any amendments thereto and any documents incorporated by reference therein); provided, however, that (i) Parent shall be obligated to prepare, file or cause a Registration Statement covering to become effective pursuant to this Section 2.01 (a “Demand Registration”): (A) no more than two times in any 12-month period and (B) no more than three times in the resale aggregate (provided that a Registration Statement shall not be counted as one of all the Demand Registrations hereunder unless it becomes effective and is maintained effective for at least 90 days or until the completion of the distribution of the Registrable Securities registered pursuant to such Registration Statement) and (ii) the Registrable Securities for an offering which a Demand Registration has been requested will have a value (based on the average closing price per share of Parent Common Stock for the ten Trading Days preceding the delivery of such Demand Notice) of not less than $25,000,000 or such lesser remaining amount of Registrable Securities held by Stockholder. Each such Demand Notice will specify the number of Registrable Securities proposed to be made on a continuous basis pursuant offered for sale and will also specify the intended method of distribution thereof.
(b) Parent agrees to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best commercially reasonable efforts (i) to cause such any Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible reasonably practicable after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Daysbut in no event later than 90 days after receipt of a Demand Notice, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier for a period of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16less than 90 days or, if earlier, the SEC informs completion of the Company that all distribution of the Registrable Securities cannotregistered pursuant to such Registration Statement. Parent shall be deemed not to have used its commercially reasonable efforts to keep a Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Stockholder not being able to offer and sell the Registrable Securities during that period, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company unless such action is required by applicable Law or permitted by Section 2.06. Parent further agrees to promptly (i) inform each Holder and use its best efforts to file supplement or make amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the such Registration Statement effective for the Effective Period and period set forth in clause (ii) above, including (A) to comply with respond to the provisions comments of the Securities Act and SEC, if any, (B) as may be required by the Exchange Act with respect to the disposition of all securities covered registration form utilized by Parent for such Registration Statement;
Statement or by the instructions applicable to such registration form, (iiiC) furnish to each Holder a Prospectus (which requirement as may be fulfilled required by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and or (D) as may be reasonably requested in writing by Stockholder or any Underwriter for Stockholder. Parent agrees to furnish to Stockholder copies of any such other documents as supplement or amendment prior to its being used or filed with the Investor may reasonably request in order to facilitate SEC.
(c) In the disposition event an offering of the Registrable Securities owned under this Section 2.01 involves one or more Underwriters, Stockholder will select the lead Underwriter and any additional Underwriters in connection with the offering from the list of investment banks set forth on Schedule II. The list of investment banks on Schedule II may be amended from time to time by it that are included in Stockholder with the consent of Parent (such registration;consent not to be unreasonably withheld or delayed).
(ivd) notify each Holder Notwithstanding the foregoing provisions of this Section 2.01, Stockholder may not request a Demand Registration during a period commencing upon the filing (or earlier, but not more than 30 days prior to such filing upon notice by Parent to Stockholder that it so intends to file) of a Registration Statement for Parent Common Stock by Parent (for its own account or for any other security holder) and its counsel in writing ending (i) of the receipt by the Company of any notification with respect to any comments 90 days after such Registration Statement is declared effective by the SEC with respect to such Registration Statement (or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect theretobecomes automatically effective), (ii) of upon the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness withdrawal of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation will not apply if Stockholder was not given reasonable opportunity, in violation of Section 2.02, to include its Registrable Securities in the receipt by Registration Statement described in this Section 2.01(d).
(e) Stockholder will be permitted to rescind a Demand Registration or request the Company removal of any notification Registrable Securities held by it from any Demand Registration at any time (so long as, in the case of a Demand Registration, after such removal it would still constitute a Demand Registration, including with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, orrequired Fair Market Value thereof); provided that, if issuedStockholder rescinds a Demand Registration, obtain the withdrawal such Demand Registration will nonetheless count as a Demand Registration for purposes of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall determining when future Demand Registrations can be reasonably requested by the Investor;
(vii) immediately notify each HolderStockholder pursuant to this Section 2.01, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares unless Stockholder reimburses Parent for all expenses (including American depositary shares representing the Ordinary Sharesreasonable fees and disbursements of counsel) are then listed; and
(ix) cooperate incurred by Parent in connection with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementDemand Registration.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Stockholder Agreement (Pathmark Stores Inc), Stockholder Agreement (Great Atlantic & Pacific Tea Co Inc)
Registration. (a) Subject to the other applicable provisions of this Agreement, the Company shall file, as promptly as reasonably practicable, but no later than the applicable Filing Deadline, (i) the Prospectus Supplement, if permitted by applicable law and the Company determines that registration through a Prospectus Supplement is appropriate in light of the possible termination of WKSI status as of the next determination date under Rule 405 of the 1933 Act, or (ii) a registration statement under the 1933 Act covering the sale or distribution from time to time by the Investors, on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act of all the Registrable Securities and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors (such registration, a “Resale Shelf Registration”). The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on another appropriate form for such purposes) (the “Resale Shelf Registration Statement”), and if the Company is a WKSI as of the filing date and determines to file a Prospectus Supplement as provided in (a)(i) above, the Resale Shelf Registration Statement shall be an Automatic Shelf Registration Statement. If the Resale Shelf Registration Statement is not an Automatic Shelf Registration Statement, then the Company shall use its reasonable best efforts to cause such Resale Shelf Registration Statement to be declared effective by the Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Deadline.
(b) Once declared effective, the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to cause the Resale Shelf Registration Statement to be continuously effective and usable until such time as soon there are no longer any Registrable Securities or at such time as practicable, but in no event later than March 31, 2016 all of the Registrable Securities are Freely Tradeable (the “Filing DeadlineEffectiveness Period”).
(c) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Effectiveness Period, prepare the Company shall use its reasonable best efforts to promptly cause such Shelf Registration to again become effective under the 1933 Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), and in any event shall, promptly amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or file with the SEC an additional registration statement (a “Subsequent Shelf Registration Statement covering the resale of all Registrable Securities Statement,” and such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale 415 of the 1933 Act registering the resale from time to time by the Investors of all securities that are Registrable Securities)Securities as of the time of such filing. The If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (i) to cause such Subsequent Shelf Registration Statement to be declared become effective by the SEC under the Securities 1933 Act (unless it becomes effective automatically upon filing) as promptly as possible is reasonably practicable after such filing, but in no event later than the filing thereof, and shall respond to any comments received from the SEC within ten date that is ninety (1090) Business Days, days after such Subsequent Shelf Registration is filed and (ii) to keep such Subsequent Shelf Registration Statement (or another Subsequent Shelf Registration) continuously effective under until the Securities Act until end of the Effectiveness Period. Any such date as Subsequent Shelf Registration shall be a registration statement on Form S-3 to the extent that the Company is the earlier of (x) the date on which all Registrable Securities covered by eligible to use such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16form, and if the SEC informs the Company that all is a WKSI as of the Registrable Securities cannotfiling date, as a result of the application of Rule 415 under the Securities Act, such registration statement shall be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New an Automatic Shelf Registration Statement”). Otherwise, in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Subsequent Shelf Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC on another appropriate form and shall provide for the registration of all such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors.
(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the 1933 Act or as reasonably requested by the Investors covered by such Shelf Registration.
(e) If a Person becomes an Investor of Registrable Securities after a Shelf Registration becomes effective under the 1933 Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming an Investor and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration:
(i) if required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration so that such Investor is named as a selling securityholder in the Shelf Registration and the related prospectus in such a manner as to permit such Investor to deliver a prospectus to purchasers of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed ofapplicable law;
(ii) prepare and file with if, pursuant to Section 2(e)(i), the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement Company shall have filed a post-effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect amendment to the disposition of all securities covered Shelf Registration that is not automatically effective, use its reasonable best efforts to cause such post-effective amendment to become effective under the 1933 Act as promptly as is reasonably practicable, but in any event by the date that is ninety (90) days after the date such Registration Statement;post-effective amendment is required by Section 2(e)(i) to be filed; and
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of notify such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents Investor as the Investor may promptly as is reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved 1933 Act of any obligations it has hereunderpost-effective amendment filed pursuant to Section 2(e)(i).
Appears in 2 contracts
Sources: Registration Rights Agreement (Act III Holdings LLC), Registration Rights Agreement (BJs RESTAURANTS INC)
Registration. (a) Effectiveness Deadline. Following the date hereof, but no later than 30 days following the Closing Date, the Partnership shall prepare and file a registration statement under the Securities Act to permit the public resale of Registrable Securities then outstanding from time to time as permitted by Rule 415 (or any similar provision then in effect) under the Securities Act with respect to all of the Registrable Securities (the “Registration Statement”). The Company shall, Registration Statement filed pursuant to this Section 2.01(a) shall be on such appropriate registration form or forms of the Commission as shall be selected by the Partnership so long as it permits the continuous offering of the Registrable Securities pursuant to Rule 415 (or any similar provision then in effect) under the Securities Act at then-prevailing market prices. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement to become effective on or as soon as practicable, but in no event later than March 31, 2016 (practicable after the “Filing Deadline”), prepare and file with the SEC a filing thereof. Any Registration Statement covering shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause the Registration Statement filed pursuant to this Section 2.01(a) to be effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act Holders until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the ceased to be Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Effectiveness Period”). Such The Registration Statement shall not include any Ordinary Shares or other securities for when effective (including the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth documents incorporated therein by reference) will comply as to form in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate material respects with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, applicable requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become will not contain an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Registration Statement or documents incorporated therein by reference, in the light of the circumstances then existing;
under which a statement is made). As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two (viii2) use its best efforts to list Business Days of such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositarydate, the Company Partnership shall promptly after provide the Holders with written notice of the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Common Unit Purchase Agreement (Antero Midstream Partners LP), Registration Rights Agreement
Registration. (ai) The Company shall, as soon as practicable, but Tilray’s obligation to include a Seller’s Registrable Securities in no event later than March 31, 2016 (the “Filing Deadline”), prepare and file with the SEC a Registration Statement covering is contingent upon such Seller furnishing in writing to Tilray such information regarding the resale Seller, the securities of all Tilray held by such Seller and the intended method of distribution of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement as shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available reasonably requested by Tilray to effect a the registration for resale of the Registrable Securities), and the Sellers shall execute such documents in connection with such registration as Tilray may reasonably request that are customary of a selling stockholder in similar situations. The Company shall use its best efforts (i) to Tilray shall, in the case of a newly filed Registration Statement, cause such Registration Statement to be declared become effective by upon filing with the SEC Commission under the U.S. Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after and, in the filing thereofcase of a prospectus supplement or a newly filed Registration Statement, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such the Registration Statement continuously effective under the U.S. Securities Act until during the Effectiveness Period.
(ii) If the Registration Statement covering resales of the Registrable Securities ceases to be effective for any reason at any time during the Effectiveness Period (other than because all securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), Tilray shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and amend the Registration Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Registration Statement with the Commission so that all Registrable Securities outstanding as of the date of such date filing are covered by a Registration Statement. If a new Registration Statement is filed, Tilray shall use its commercially reasonable efforts to cause the new Registration Statement to become effective as promptly as is practicable after such filing and to keep the earlier new Registration Statement continuously effective until the end of the Effectiveness Period.
(iii) Tilray shall amend and supplement the Prospectus and amend the Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by Tilray for such Registration Statement or file a new Registration Statement, if required by the U.S. Securities Act, or any other documents necessary to name a Notice Holder as a selling securityholder pursuant to Section (a)(v).
(iv) [Reserved].
(v) Each Seller may sell Registrable Securities pursuant to a Registration Statement and related Prospectus only in accordance with this Section (a)(v) and Section (b)(vii). Each Seller wishing to sell Registrable Securities pursuant to the Resale Documents shall deliver a completed Notice and Questionnaire to Tilray prior to any intended distribution of Registrable Securities under the Resale Documents. From and after the Registration Effective Date, Tilray shall, as promptly as practicable after the date completed Notice and Questionnaires from one or more Notice Holders holding at least one million (1,000,000) Registrable Securities are delivered, and in any event no later than the later of (x) the twenty (20) calendar days after such date on which all Registrable Securities covered by such Registration Statement have been sold or (y) twenty (20) calendar days after the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account expiration of any other holder without Deferral Period in effect when the prior written consent Notice and Questionnaire are delivered or put into effect within five (5) Business Days of Investor. Notwithstanding the registration obligations set forth such delivery date (but in this Section 8.16any event, not more than once in any fiscal quarter):
(A) if the SEC informs the Company that all of the Registrable Securities cannotrequired by applicable law, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best commercially reasonable efforts to file amendments with the Commission a post-effective amendment to the Registration Statement as or prepare and, if required by applicable law, file a supplement to the SEC and/or (ii) withdraw the Registration Statement and related Prospectus or a supplement or amendment to any document incorporated therein by reference or file a new Registration Statement (a “New Registration Statement”), in either case covering or any other required document so that the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or Seller delivering such other form available to register for resale the Registrable Securities Notice and Questionnaire is named as a secondary offering; provided, however, that prior selling securityholder in a Registration Statement and the related Prospectus in such a manner as to filing permit such amendment or New Registration Statement, the Company shall be obligated Seller to use its best efforts deliver such Prospectus to advocate with the SEC for the registration of all purchasers of the Registrable Securities in accordance with applicable law and, if Tilray shall file a post-effective amendment to a Registration Statement or shall file a new Registration Statement, Tilray shall use its commercially reasonable efforts to cause such post-effective amendment or new Registration Statement to be declared or become effective under the U.S. Securities Act as promptly as is practicable;
(B) provide such Seller, upon request and without charge, copies of any publiclydocuments filed pursuant to Section (a)(v)(A); and
(C) notify Special Counsel as promptly as practicable after the effectiveness under the U.S. Securities Act of any new Registration Statement or post-available written or oral guidanceeffective amendment filed pursuant to Section (a)(v)(A); provided that if such Notice and Questionnaire are delivered during a Deferral Period, commentsTilray shall so inform the Seller delivering such Notice and Questionnaire and shall take the actions set forth in clauses (A), requirements or requests (B) and (C) above upon expiration of the SEC’s staff Deferral Period in accordance with Section (“Commission Guidance”b)(vii). In Notwithstanding anything contained herein to the event contrary, (i) Tilray shall be under no obligation to name any Seller that is not a Notice Holder as a selling securityholder in any Registration Statement or related Prospectus and (ii) if the Company amends Commission prevents Tilray from including any or all of the Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 under the Securities Act for the resale of the Shares held by a Notice Holder or files a New Registration Statement, as the case may be, under clauses (i) any other Notice Holder or (ii) aboveotherwise, the Company will use its best efforts number of Shares to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not be registered for resale on each Notice Holder in the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date reduced pro rata among all such selling securityholders such that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective shall register for the Effective Period and to comply with the provisions resale such number of the Securities Act and the Exchange Act with respect Shares which is equal to the disposition maximum number of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled Shares as is permitted by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementCommission.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Assignment and Assumption Agreement (Tilray, Inc.), Assignment and Assumption Agreement (Tilray, Inc.)
Registration. (a) The On or prior to the Filing Date the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 (or▇-▇, if Form F-3 is not then available ▇-▇, ▇▇-▇, ▇▇-▇, or another appropriate form in accordance herewith, so as to permit the Company, on such form of Registration Statement as is then available to effect a registration for public offering and resale of the Registrable Securities). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its best reasonable commercial efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) within 120 days or as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such the Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effective "Effectiveness Period”"). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly .
(b) If: (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by is not filed on or prior to the SEC and/or Filing Date; (ii) withdraw the Registration Statement and file a new is not declared effective by the Commission by the Effectiveness Date; (iii) after the Registration Statement is filed with and declared effective by the Commission, the Registration Statement ceases to be effective (a “New Registration Statement”), in either case covering the maximum number of by suspension or otherwise) as to all Registrable Securities permitted to be registered which it is required to relate at any time prior to the expiration of the Effectiveness Period (without being succeeded immediately by an additional registration statement filed and declared effective) for a period of time which shall exceed 45 days in the SEC, on Form F-3 aggregate per year or such other form available to register for resale the Registrable Securities more than 25 consecutive calendar days (defined as a secondary offeringperiod of 365 days commencing on the date the Registration Statement is declared effective); providedor (iv) the Common Stock is not listed or quoted, however, that prior to filing such amendment or New Registration Statement, is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall be obligated not have been able to use its best efforts to advocate with the SEC for the registration of all cure such trading suspension within 30 days of the Registrable Securities in accordance with notice thereof or list the Common Stock on another Trading Market); (any publicly-available written such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish to each Holder a Prospectus the date which such 45day or 25 consecutive day period (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor case may reasonably request in order to facilitate the disposition be) is exceeded, or for purposes of the Registrable Securities owned by it that are included in such registration;
clause (iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which such three (3) Trading Day period is exceeded, being referred to as "Event Date"), then until the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) for each thirty (30) day period (prorated for partial periods) on a daily basis of the Registration Statement cause an opinion of legal counsel as to the effectiveness remaining principal balance amount of the Registration Statement to Note. While such Event continues, such liquidated damages shall be delivered to such agent or paid not less often than each thirty (30) days. Any unpaid liquidated damages as of the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale date when an Event has been cured by the Investor under Company shall be paid within three (3) days following the Registration Statementdate on which such Event has been cured by the Company.
(c) The Company understands that each Holder disclaims being an underwriter, but in Within ten (10) business days of the event any Holder is deemed an underwriterEffectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Powercold Corp), Registration Rights Agreement (Powercold Corp)
Registration. (a) The Company shallGeneral Partner shall (i) prepare, file and use reasonable best efforts to cause to become effective as soon as practicable, but in no event later than March 31, 2016 practicable thereafter a registration statement (the “Filing Deadline”"Issuance Registration Statement"), prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall which may be on Form F-3 (orS-3, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically relating to the Shares issuable by the General Partner upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all exercise of the Registrable Securities cannot, as a result Redemption Rights assuming full conversion of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder Series C Preferred Units into Common Units and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all full satisfaction of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests Redemption Rights by delivery of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement Shares and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such the Issuance Registration Statement and the Prospectus used in connection with such Registration Statement therewith as may be necessary to keep the Issuance Registration Statement effective and to comply with the provisions of the Securities Act. The General Partner shall file the Issuance Registration Statement during the Window Period.
(b) In the event that, for any reason, the General Partner (i) is unable to cause the Issuance Registration Statement to be declared effective by the SEC within ninety (90) days following the filing date thereof or (ii) otherwise determines that it will be unable to cause the Issuance Registration Statement to be declared effective by the SEC within such ninety (90) day period or that it will be unable or impracticable to keep the Issuance Registration Statement continuously effective, the General Partner shall file with the SEC, within thirty (30) days after the earlier of such ninetieth day and the date of such determination, a registration statement on Form S-3 or other appropriate registration form with the SEC covering the resale by Contributing Party of such Shares and shall use its reasonable best efforts to cause such registration statement (the "Section 4.1(b) Resale Registration Statement") to become effective as soon as practicable thereafter. Following the effective date of the Section 4.1(b) Resale Registration Statement and until the Shares covered by the Section 4.1(b) Resale Registration Statement have been sold or are eligible for resale under Rule 144(k) promulgated under the Securities Act, the General Partner shall keep the Section 4.1(b) Resale Registration Statement current, effective and available for the Effective Period resale by Contributing Party of the Shares delivered to it pursuant hereto.
(c) If the Issuance Registration Statement is not effective for any reason, Shares are issued to the Contributing Party without registration under the Securities Act and a Section 4.1(b) Resale Registration Statement covering the resale of such Shares is not effective, the General Partner shall, upon the written request of any Contributing Party (a "Demand Notice"), cause to be filed as soon as practicable after the date of such request by such Contributing Party a registration statement (a "Demand Resale Registration Statement" and each of a Demand Resale Registration Statement and a Section 4.1(b) Resale Registration Statement is hereinafter sometimes referred to as a "Resale Registration Statement") in accordance with Rule 415 under the Securities Act (or such other rule as is applicable to the proposed sale) relating to the sale by such Contributing Party of all or a portion of the Shares held by such Contributing Party in accordance with the terms hereof, and shall use reasonable best efforts to cause such Demand Resale Registration Statement to be declared effective by the SEC as soon as practicable thereafter. The General Partner agrees to use its reasonable best efforts to keep the Demand Resale Registration Statement continuously effective, after its date of effectiveness, with respect to the Shares of the requesting Contributing Party until the earlier of (a) the date on which all of the Shares covered by the Demand Resale Registration Statement have been sold and (b) the date on which all of the Shares held by such Contributing Party have become eligible for sale pursuant to Rule 144(k) (or any successor provision).
(d) During the time period when a Resale Registration Statement is required to be current, effective and available under this Section 4.1, the General Partner also shall:
(i) promptly prepare and file with the SEC such amendments and supplements to such Resale Registration Statement and the Prospectus relating thereto, as may be necessary to keep such Resale Registration Statement effective and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition sale of all securities the Shares covered by such Resale Registration Statement whenever Contributing Party shall desire to sell or otherwise dispose of the same but in no event beyond the period in which the Registration Statement is required to be kept in effect. Upon ten (10) business days' notice, the General Partner shall file any supplement or post-effective amendment to such Resale Registration Statement with respect to the plan of distribution or a Contributing Party's ownership interests in its Shares that is reasonably necessary to permit the sale of such Contributing Party's Shares pursuant to such Resale Registration Statement;
(iiiii) furnish to each Holder a Contributing Party, without charge, such number of authorized copies of the Prospectus (which requirement may be fulfilled by the public filing of relating thereto, and any amendments or supplements to such Prospectus on ▇▇▇▇▇, including a preliminary prospectusProspectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor Contributing Party may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities Shares owned by it that Contributing Party;
(iii) register or qualify the securities covered by such Resale Registration Statement under state securities or blue sky laws of such jurisdictions as are included reasonably required to effect a sale thereof and do any and all other acts and things which may be necessary or appropriate under such state securities or blue sky laws to enable Contributing Party to consummate the public sale or other disposition in such registrationjurisdictions of such securities;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of before filing any notification with respect to any comments by the SEC with respect amendments or supplements to such Resale Registration Statement or the Prospectus or relating thereto, furnish copies of all such documents proposed to be filed to the Contributing Party, who shall be afforded a reasonable opportunity to review and comment thereon; provided, however, that all such documents shall be subject to the approval of the Contributing Party insofar as they relate to information concerning the Contributing Party (including, without limitation, the proposed method of distribution of Contributing Party's securities);
(v) notify Contributing Party promptly (A) when such Resale Registration Statement has become effective and when any amendment or supplement post-effective amendments and supplements thereto or become effective, (B) of any request by the SEC or any state securities authority for amendments and supplements to such Resale Registration Statement and the amending or supplementing thereof Prospectus relating thereto or for additional information with respect theretoinformation, and (iiC) of the receipt happening of any event during the period such Resale Registration Statement is effective which in the judgment of the General Partner makes any statement made in such Resale Registration Statement or such Prospectus untrue in any material respect or which requires the making of any changes in such Resale Registration Statement or such Prospectus in order to make the statements therein not misleading;
(vi) cooperate with Contributing Party to facilitate the timely preparation and delivery of certificates representing Shares being sold, which certificates shall not bear any restrictive legends provided the Shares evidenced thereby have been sold in a manner permitted by the Company Prospectus relating to such Resale Registration Statement;
(vii) upon the occurrence of any notification event contemplated by clause (v)(C) above, promptly prepare and file a supplement or post-effective amendment to such Resale Registration Statement or the Prospectus relating thereto or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Shares, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading; provided, however, that the obligation to prepare and file any such supplement or post-effective amendment shall be suspended if the General Partner, relying upon advice of counsel, determines that disclosure of any information required to be included therein would be adverse to its interests, but such suspension (A) shall not extend beyond sixty (60) days with respect to any such specified event and (B) shall not occur more than twice during any period of twelve (12) consecutive months; and
(viii) promptly notify each Contributing Party of, and confirm in writing, (A) the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of such Resale Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding proceedings for that purpose, or (iiiii) if, between the effective date of any such Resale Registration Statement and the sale of the receipt by Shares to which it relates, the Company of General Partner receives any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction the Shares or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) purpose. The General Partner shall use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the such a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, Statement at the earliest practicable moment;time.
(vie) use its best efforts The General Partner hereby agrees to register indemnify and qualify hold harmless Contributing Party and each person, if any, who controls Contributing Party (within the securities covered by such Registration Statement under such other securities Laws meaning of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end either Section 15 of the Effective PeriodSecurities Act or Section 20 of the Exchange Act) from and against any and all losses, upon discovery thatclaims, damages, costs and expenses (including reasonable attorneys' fees) ("Claims") to which Contributing Party or upon such controlling person may become subject, under the happening of Securities Act or otherwise, caused by any event as a result of which, the Prospectus includes an untrue statement or alleged untrue statement of a material fact contained in any Resale Registration Statement or omits the Prospectus relating thereto or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and shall reimburse such Contributing Party and each such controlling person for any legal or other expenses reasonably incurred by such Contributing Party in connection with investigating or defending any such loss as such expenses are incurred; provided, however, that the light General Partner shall not be liable insofar as any such losses, claims, damages, costs and expenses (including reasonable attorneys' fees) are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the General Partner by any Contributing Party expressly for use therein. Each Contributing Party agrees to indemnify and hold harmless the General Partner and each person, if any, who controls the General Partner (within the meaning of either Section 15 of the circumstances then existingSecurities Act or Section 20 of the Exchange Act) from and against any and all Claims to which the General Partner or such controlling person may become subject, and promptly prepareunder the Securities Act or otherwise, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include caused by any untrue statement or omission or alleged untrue statement or omission based upon such information furnished in writing to the General Partner by such Contributing Party.
(f) Each Contributing Party agrees that, upon receipt of a material fact or omit to state a material fact required to be stated therein or necessary to make any notice from the statements therein not misleading in the light General Partner of the circumstances then existing;happening of any event of the kind described in clause (d)(v)(C) above and without waiving any rights under clause (d)(vii) above, such Contributing Party will forthwith discontinue disposition of securities pursuant to any Resale Registration Statement until Contributing Party's receipt of the copies of the supplemented or amended Prospectus contemplated by clause (d)(vii) above.
(viiig) The General Partner shall bear all expenses relating to filing the Issuance Registration Statement and each Resale Registration Statement (collectively, the "Registration Statements") and keeping the Registration Statements current, effective and available; provided, however, that the General Partner shall not be responsible for any brokerage fees or underwriting commissions due and payable in connection with the sale of Shares.
(h) The General Partner shall use its reasonable best efforts to list such Registrable Securities cause all Shares to be listed or otherwise eligible for full trading privileges on each the principal national securities exchange (currently the New York Stock Exchange) on which shares of Common Stock are then listed on or before the date on which a Registration Statement covering the Shares becomes effective or the Shares are issued by the General Partner to a Contributing Party, whichever is later. The General Partner will use reasonable best efforts to continue the listing or trading privilege for all Shares on the exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) of Common Stock are then listed; and
(ix) cooperate with each Holder . The General Partner will promptly notify the Contributing Party of, and the Depositary to facilitate the timely delivery of ADSs (confirm in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositarywriting, the Company shall promptly after the effectiveness delisting of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementShares.
(ci) The Company understands that each Holder disclaims being an underwriter, but in Notwithstanding anything to the event any Holder is deemed an underwritercontrary contained herein, the General Partner shall have no obligation to keep any Registration Statement effective if the status of the General Partner (or its successor) as an Exchange Act Reporting Company shall not be relieved of any obligations it has hereunderis terminated.
Appears in 2 contracts
Sources: Redemption Rights Agreement (General Growth Properties Inc), Redemption Rights Agreement (General Growth Properties Inc)
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 shall (the “Filing Deadline”), prepare and i) file with the SEC Commission on or prior to the Filing Deadline Date a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale offer and sale of the Registrable Securities). The Company shall , and (ii) use its reasonable best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after on or prior to the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”)Effectiveness Deadline Date. Such The Registration Statement shall not include any Ordinary Shares be on Form S-1 or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, Form SB-2 (except if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available is not then eligible to register for resale the Registrable Securities on Form S-1 or Form SB-2, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise requested or required pursuant to comments received from the Commission or other governmental or regulatory authority upon a review of such Registration Statement) a “Plan of Distribution” substantially in the form attached hereto as a secondary offering; providedAnnex A.
(b) The Company shall use its reasonable best efforts to prepare and file with the Commission such amendments and supplements to the Registration Statement and Prospectus used in connection therewith and take all such other actions to keep the Registration Statement continuously effective in order to permit the Prospectus to be usable by holders for resales of Registrable Securities from the Effective Time until the earliest to occur of (A) the date which is 24 months after the Closing Date, however(B) the date upon which all Registrable Securities registered under the Registration Statement have been sold thereunder, that and (C) the date upon which all of the Securities cease to be Restricted Securities (such period being referred to herein as the “Effectiveness Period”).
(c) If (i) such Registration Statement covering the Registrable Securities is not filed with the Commission on or prior to filing the Filing Deadline Date, (ii) such Registration Statement covering the Registrable Securities is filed with but is not declared effective by the Commission on or prior to the Effectiveness Deadline Date or (iii) after the Effective Time, such Registration Statement ceases for any reason to be effective or any Prospectus thereunder ceases to be usable with respect to any Registrable Securities it is required to cover at any time prior to the expiration of the Effectiveness Period for more than an aggregate of 45 calendar days (which need not be consecutive), excluding (x) grace periods of not more than 15 calendar days each during which a post-effective amendment or New is to be filed to include in the Registration Statement material information previously not included in the Registration Statement, or to correct a misstatement of a material fact set forth in the Registration Statement, in each case due to facts or circumstances previously unknown to the Company shall be obligated and arising subsequent to use its best efforts to advocate with the SEC for the registration effectiveness of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statementany post-effective amendment thereto, or to otherwise provide information necessary to comply with Section 10(a)(3) of the Securities Act regarding the age of financial statements included therein, provided that the Company diligently works to have any such post-effective amendment prepared, filed and declared effective by the Commission as soon as practicable and (y) grace periods of not more than five trading days each for the case may bepreparation and filing with the Commission of any prospectus supplement (any such failure or breach described in clauses (i), under (ii) or (iii) above being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 45 trading day-period is exceeded, being referred to as “Event Date”), then following each such Event Date, the Company will use its best efforts shall become obligated to file with the SECpay to each Electing Holder, as promptly liquidated damages and not as allowed by a penalty, a number of shares of Common Stock equal to 1.0% of the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities number of shares of Common Stock that were not registered for resale issued to such Electing Holder on the Registration StatementClosing Date and are still owned by such Electing Holder on an Ending Date, as amended, or for each 30-day period (pro rated on a daily pro-rata basis for periods shorter than 30 days) elapsed between the New Registration Statement Event Date and the earlier of: (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10thA) day after the date that the Company applicable Event is allowed to file cured and (B) the date that the Effectiveness Period expires. No such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration payments shall be payable in respect of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Underlying Warrant Shares or securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt not Registrable Securities. Liquidated damages payments payable by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (iiunder this Section 2(c) of the receipt shall be issued by the Company to each Electing Holder not later than seven Business Days following the end of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement each 30-day period or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time portion thereof prior to the cure of an Event (each such end date being an “Ending Date”). Notwithstanding anything to the contrary contained herein or in the Subscription Agreement or any related document or agreement, the aggregate number of shares of Common Stock issued or issuable to any holder as liquidated damages under this Section 2(c) shall not exceed 10% of the Effective Period, upon discovery that, or upon aggregate number of shares of Common Stock issued to such holder on the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee Closing Date pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementSubscription Agreement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Subscription Agreement (Geopetro Resources Co), Registration Rights Agreement (Geopetro Resources Co)
Registration. (a) The On or after the earlier of (i) the later of (A) the date on which the Company shallfiles its Annual Report on Form 10-K with respect to its 2010 fiscal year, as soon as practicable(B) the date on which the registration statement for the Medicsight PLC shares of common stock owned by the Company is declared effective by the SEC, but and (C) the date on which all of the assets of MGT (UK) have been disposed of, and (ii) June 30, 2011, the Purchaser shall have the right to request that the Company file the Registration Statement and, upon receipt such request, the Company shall prepare and file the Registration Statement on the terms and conditions set forth in no event later than March 31this Agreement. On or prior to the Filing Date, 2016 (the “Filing Deadline”), Company shall prepare and file with the SEC Commission a Registration Statement on Form S-3 covering the resale of the Shares if the Company is then eligible to utilize such Form (or on such other form appropriate for such purpose) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and use commercially reasonable efforts to have the Registration Statement declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). The Company hereby represents and warrants to the Purchasers that as of the date hereof the Company is eligible to use Form S-3 for the registration of the Registrable Securities.
(b) If for any reason other than due solely to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission in which the Company uses its commercially reasonable efforts and time to cause as many Registrable Securities for as many Holders as possible to be included in the Registration Statement shall be filed pursuant to Sections 2(a), without characterizing any Holder as an underwriter (and in such regard uses its commercially reasonable efforts to cause the Commission to permit the affected Holders or their respective counsel to participate in Commission conversations on Form F-3 such issue together with Company Counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (or, if Form F-3 is not then available 3) Trading Days prior written notice to the Company, on such form of Holders (i) remove from the Registration Statement as is then available such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to effect a such restrictions and limitations on the registration for and resale of the Registrable Securities). The Company shall use its best efforts (i) , in each case as the Commission may require in order for the Commission to cause allow such Registration Statement to become effective; provided, that in no event may the Company name any Holder as an underwriter without such Holder’s prior written consent (collectively, the “SEC Restrictions”). Unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated among the Registrable Securities of the Holders on a pro rata basis. No liquidated damages under Section 2(c) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled, until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 2 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) so that the Company will be required to file with and cause to be declared effective by the SEC under Commission such additional Registration Statements in the Securities Act (unless it becomes time frames set forth herein as necessary to ultimately cause to be covered by effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which Statements all Registrable Securities covered (if such Registrable Securities cannot at such time be resold by such the Holders thereof without volume limitations pursuant to Rule 144).
(c) If: (i) a Registration Statement have been sold is not filed on or (y) the date on which prior to its Filing Date covering the Registrable Securities may required under this Agreement to be sold without any restriction pursuant to Rule 144 included therein (if the “Effective Period”). Such Company files a Registration Statement shall not include any Ordinary Shares or other securities for without affording the account of any other holder without Holders the prior written consent of Investor. Notwithstanding opportunity to review and comment on the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate required Effectiveness Date or if by the Business Day immediately following the Effective Date, the Company shall not have filed a “final” prospectus for the Registration Statement with the SEC for the registration of all of the Registrable Securities Commission under Rule 424(b) in accordance with any publicly-available written the terms hereof (whether or oral guidancenot such a prospectus is technically required by such Rule), commentsor (iii) after its Effective Date, requirements without regard for the reason thereunder or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or files a New Registration Statement, breach being referred to as the case may be, under an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then the Holders are entitled to exercise such rights they may have hereunder or under applicable law.
(d) Each Holder agrees to furnish to the Company will use its best efforts a completed Questionnaire in the form attached to file with the SEC, this Agreement as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)). In addition to the foregoing, each Holder shall provide such other information to the Company as the Company may from time-to-time reasonably request.
Appears in 2 contracts
Sources: Registration Rights Agreement (MGT Capital Investments Inc), Registration Rights Agreement (MGT Capital Investments Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the entire Effectiveness Period. Promptly following any date on which the Registrable Securities may be sold without any restriction pursuant Company becomes eligible to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the use a registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of statement on Form S-3 to register the Registrable Securities cannotfor resale, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), but in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or no event more than thirty days after such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementdate, the Company shall be obligated to use its best efforts to advocate with the SEC for the file a registration of all of statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in accordance with any publicly-available written event prior to the Effectiveness Date therefor.
(c) If: (i) a Registration Statement is not filed on or oral guidance, comments, requirements or requests of the SEC’s staff prior to its Filing Date (“Commission Guidance”). In the event if the Company amends the files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or files (ii) a New Registration StatementStatement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the case may be, under expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days in any twelve-month period (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statementcure of an Event, except in the case of the first Event Date.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Granite Partners, L.L.C.), Securities Purchase Agreement (Granite City Food & Brewery LTD)
Registration. (a) Subject to the other applicable provisions of this Agreement, the Company shall file, as promptly as reasonably practicable, but no later than the Filing Deadline, a registration statement under the 1933 Act covering the sale or distribution from time to time by the Investors, on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act of all the Registrable Securities and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors (such registration, a “Resale Shelf Registration”). The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on another appropriate form for such purposes) (the “Resale Shelf Registration Statement”). The Company shall use its reasonable best efforts to cause such Resale Shelf Registration Statement to be declared effective by the Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Deadline.
(b) Once declared effective, the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to cause the Resale Shelf Registration Statement to be continuously effective and usable until such time as soon there are no longer any Registrable Securities (the “Effectiveness Period”).
(c) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Effectiveness Period, the Company shall use its reasonable best efforts to, as promptly as practicable, but in no event later than March 31, 2016 cause such Shelf Registration to again become effective under the 1933 Act (including obtaining the “Filing Deadline”prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), prepare and in any event shall, as promptly as practicable, amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or file with the SEC an additional registration statement (a “Subsequent Shelf Registration Statement covering the resale of all Registrable Securities Statement,” and such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale 415 of the 1933 Act registering the resale from time to time by the Investors of all securities that are Registrable Securities)Securities as of the time of such filing. The If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (i) to cause such Subsequent Shelf Registration Statement to be declared become effective by the SEC under the Securities 1933 Act (unless it becomes effective automatically upon filing) as promptly as possible is reasonably practicable after such filing, but in no event later than the filing thereof, and shall respond to any comments received from the SEC within ten date that is forty-five (1045) Business Days, days after such Subsequent Shelf Registration is filed and (ii) to keep such Subsequent Shelf Registration Statement (or another Subsequent Shelf Registration) continuously effective and usable until the end of the Effectiveness Period. Any such Subsequent Shelf Registration shall be a registration statement on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors.
(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the 1933 Act or as reasonably requested by the Investors covered by such Shelf Registration.
(e) If a Person becomes an Investor of Registrable Securities after a Shelf Registration becomes effective under the Securities Act until such date 1933 Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the earlier Company of such Person becoming an Investor and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration:
(xi) if required and permitted by applicable law, file with the date on which all Registrable Securities covered by Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration so that such Investor is named as a selling securityholder in the Shelf Registration Statement have been sold or (y) and the date on which related prospectus in such a manner as to permit such Investor to deliver a prospectus to purchasers of the Registrable Securities may be sold without any restriction in accordance with applicable law;
(ii) if, pursuant to Rule 144 Section 2(e)(i), the Company shall have filed a post-effective amendment to the Shelf Registration that is not automatically effective, use its reasonable best efforts to cause such post-effective amendment to become effective under the 1933 Act as promptly as is reasonably practicable, but in any event by the date that is thirty (30) days after the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for date such post-effective amendment is required by Section 2(e)(i) to be filed; and
(iii) notify such Investor as promptly as is reasonably practicable after the account effectiveness under the 1933 Act of any other holder without the prior written consent of Investor. post-effective amendment filed pursuant to Section 2(e)(i).
(f) Notwithstanding the registration obligations set forth in this Section 8.162, if in the SEC event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, not be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform in writing each Holder of the Investors and use its reasonable best efforts to file amendments to the Resale Shelf Registration Statement as required by the SEC Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file as promptly as possible a new Registration Statement registration statement (a “New Registration Statement”)) on Form S-3, in either case covering or if Form S-3 is not then available to the maximum number of Registrable Securities permitted to be registered by the SECPurchaser for such registration statement, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its reasonable best efforts to advocate with the SEC Commission for the registration of all of the Registrable Securities in accordance with any publicly-publicly available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”)staff. Notwithstanding any other provision of this Agreement, if the Commission imposes a limitation on the number of Registrable Securities permitted to be registered on a particular Resale Registration Statement as a secondary offering, unless otherwise directed in writing by an Electing Investor as to further limit its Registrable Securities to be included on the Registration Statement, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata among all such Electing Investors whose securities are included in such Resale Registration Statement, subject to a determination by the Commission that certain holders must be reduced first based on the number of Registrable Securities held by such holders. In the event the Company amends the Resale Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its reasonable best efforts to file with the SECCommission, as promptly as allowed by Commission provided to the SEC Purchaser or Commission Guidanceto registrants of securities in general, one or more Registration Statements registration statements on Form F-3 S-3 or such other forms form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (KCP Holdings LTD), Registration Rights Agreement (Triller Group Inc.)
Registration. The Company has received written comments from the SEC with respect to the Initial Registration Statement pertaining to Rule 415, a copy of which has been provided to the Buyers by the Company, which, unless rebutted by the Company, requires the Company to treat the registration of the Initial Shares under the Initial Registration Statement as a “primary offering” with the effect that the Buyers would be deemed to be “underwriters” for purposes of the Securities Act with respect to the sale of the Initial Shares in the Initial Registration Statement. The Company represents and warrants to the Buyers that, after consultation with the Buyers and following discussions with the SEC in which the Company used its reasonable best efforts and devoted a reasonable amount of time to cause as many Registrable Securities as possible to be included in the Initial Registration Statement without characterizing any Designated Holder as an underwriter, the Company has been unable to cause the inclusion of all of the Initial Shares in the Initial Registration Statement and has determined to remove from the Initial Registration Statement a certain portion of the Initial Shares (the “Cut Back Shares”).
(a) The Company shall, shall use its reasonable best efforts to cause the Initial Registration Statement to be declared effective under the Securities Act as soon as practicablepossible, but in any event, no event later than March 31the Effectiveness Date, 2016 and shall use its reasonable best efforts to keep the Initial Registration Statement continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities registered thereunder by the Designated Holders and that it conforms in all material respects to the requirements of the Securities Act during the entire period beginning on the Effectiveness Date and ending on the date on which all Registrable Securities registered thereunder have ceased to be Registrable Securities.
(b) No later than the “Filing Deadline”)180th day following the date the Initial Registration Statement is declared effective by the SEC, the Company shall prepare and file with the SEC a an additional Registration Statement covering the resale of all Registrable Securities not already covered by the Initial Registration Statement (including the Cut Back Shares and the shares of Common Stock sold under the New Securities Purchase Agreement) for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available by the Designated Holders of any and all Registrable Securities registered thereunder; provided, however, that the Company shall only be on Form F-3 (orrequired to register such number of Registrable Securities pursuant to this Section 2.2(b), if Form F-3 is such that the offering of such Registrable Securities will not then available to be deemed, in the Company, on such form of Registration Statement as is then available to effect a registration for resale reasonable judgment of the Registrable Securities). Company after consultation with the Buyers and with the SEC, to be a “primary offering.” The Company shall use its reasonable best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective, supplemented and amended to the extent necessary to ensure that is available for the resale of all Registrable Securities registered thereunder by the Designated Holders and that it conforms in all material respects to the requirements of the Securities Act during the entire period beginning on the applicable Effectiveness Date and ending on the date on which all Registrable Securities registered thereunder have ceased to be Registrable Securities.
(unless it becomes effective automatically upon filingc) If, for any reason, the Company has been unable to include all of the remaining Registrable Securities (including the Cut Back Shares and the shares of Common Stock issued under the New Securities Purchase Agreement ) in the Registration Statement filed pursuant to Section 2.2(b), then the Company shall prepare and file as promptly soon as reasonably possible after the date on which the SEC shall indicate as being the first date or time that such filing thereofmay be made, but in any event by the Filing Date therefore, one or more additional Registration Statements covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available by the Designated Holders of any and all Registrable Securities registered thereunder. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (x) entire period beginning on the applicable Effectiveness Date and ending on the date on which all Registrable Securities covered by such Registration Statement registered thereunder have been sold or (y) ceased to be Registrable Securities. For the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account avoidance of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16doubt, if the SEC informs the Company that will prepare and file additional Registration Statements in accordance with the terms hereof until such time as all of the Registrable Securities cannotare covered by effective Registration Statements.
(d) The Company may, as at any time it is eligible to do so, file a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering post-effective amendment on a single registration statement, the Company agrees Form S-3 to promptly (i) inform each Holder and use its best efforts to file amendments to the any Registration Statement on Form S-1 for the resale of any then existing Registrable Securities or in any such other manner as required is preferred or permitted by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep convert such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such a Form S-3 Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending . Upon the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Form S-3 Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant all references to a Registration Statement, which ADSs Statement in this Agreement shall then automatically be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as deemed to be a reference to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Form S-3 Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Tontine Capital Partners L P)
Registration. (a) The On the terms and subject to the conditions of this Agreement, subject to Section 4(a) below, the Company shallshall use reasonable best efforts to file, as soon as practicable, but in no event later than March 31ninety (90) days following the Effective Date, 2016 (a registration statement under the “Filing Deadline”), prepare and file with the SEC a Registration Statement Securities Act covering the resale of all Registrable Securities for an offering that the Investor requests to be made registered along with the identity of any Permitted Holders (to the extent then known) who seek to sell Registrable Securities, along with any other shares of Common Stock the Company determines to include in such registration on behalf of itself or another selling shareholder, relating to the offer and sale of such securities from time to time in accordance with the methods of distribution (which shall include the ability to conduct an underwritten offering and which shall also include sales by a continuous basis Permitted Holder indicated in writing by the Investor in the notice delivered pursuant to this Section 2(a) or in an amendment required pursuant to Section 3(a)(viii)) set forth in the registration statement and Rule 415415 under the Securities Act. Such Registration Statement The registration statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable SecuritiesSecurities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its best commercially reasonable efforts (i) to cause such Registration Statement the registration statement to be declared effective by the SEC or otherwise to become effective under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofreasonably practicable, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such Registration Statement the registration statement continuously effective under the Securities Act until such date as is the earlier earliest of (xi) the date on which all Registrable Securities covered by included in such Registration Statement registration statement have been sold or sold, (yii) the date on which the when there no longer remain any Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) are Freely Tradeable or (iiiii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement three (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th3) day years after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidanceof effectiveness.
(b) Subject If the Investor intends to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any distribute Registrable Securities under this Agreementby means of an underwriting, the Company shall, as expeditiously as possible:
(i) prepare the Investor shall promptly so advise the Company in writing and file with (ii) the SEC a Registration Statement with respect Company shall have the right to appoint the book-running, managing and other underwriter(s), which such Registrable Securities and underwriters shall be reasonably acceptable to the Investor; provided that in no event shall the Company or any of its Affiliates have any obligation to facilitate or participate in more than two (2) underwritten offerings requested by or on behalf of the Investor. In any such underwritten offering, the Investor will use its reasonable best efforts to cause a Registration Statement that registers avoid allowing an individual purchaser to purchase shares in such Registrable Securities to become effective, and keep such Registration Statement effective until all offering from shares being sold on behalf of the Registrable Securities have been disposed of;Investor that would constitute more than 5% of the shares of Common Stock outstanding as of such of date; provided that the foregoing limitation shall not apply to sales by a financial or lending institution holding shares of Common Stock pledged by the Investor.
(iic) prepare and file The Company shall cause (i) the registration statement (as of the effective date of the registration statement), any amendment thereof (as of the effective date thereof) or supplement thereto (as of its date), (A) to comply in all material respects with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions applicable requirements of the Securities Act and the Exchange Act with respect (B) not to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading misleading, and (ii) any related prospectus, preliminary prospectus or free writing prospectus and any amendment thereof or supplement thereto, as of its date, (A) to comply in all material respects with the applicable requirements of the Securities Act and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances then existing;under which they were made, not misleading; provided, however the Company shall have no such obligations or liabilities with respect to any information furnished to the Company by or on behalf of the Investor expressly for inclusion therein.
(viiid) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a All Registration Statement, which ADSs Expenses shall be free of all restrictive legends. In connection therewith, if required borne by the Company’s agent which maintains . All Selling Expenses shall be borne by the register of members of Ordinary Shares or the Depositary, Investor. The Investor shall promptly reimburse the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with for any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale Selling Expenses incurred by the Investor under the Registration StatementCompany upon notice (and in any event within five (5) Business Days of such notice).
(ce) The Company understands will submit any required additional shares notification to Nasdaq that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not may be relieved required as a result of any obligations it has hereundertransaction contemplated by this Agreement.
Appears in 2 contracts
Sources: Settlement Agreement (Trafelet Remy W), Settlement Agreement (Alico Inc)
Registration. (a) The Company Upon the occurrence of a Triggering Event, ------------ Issuer shall, at the request of Grantee included in the Exercise Notice, as soon promptly as practicablepracticable prepare, but in no event later than March 31, 2016 (file and keep current a shelf registration statement under the “Filing Deadline”), prepare Securities Act covering all Option Shares issued and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis issuable pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company Option and shall use its best reasonable efforts (i) to cause such Registration Statement registration statement to be declared become effective by and remain current in order to permit the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares sale or other securities for the account disposition of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all Option Shares issued upon exercise of the Registrable Securities cannot, as a result Option in accordance with any plan of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required disposition requested by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offeringGrantee; provided, however, that prior Issuer may postpone or suspend the filing or -------- ------- effectiveness of a registration statement relating to a registration request by Grantee under this Section 8 for a period of time (not in excess of 30 days) if such filing such amendment or New Registration Statementeffectiveness would require the disclosure of material information that Issuer has a bona fide business purpose for preserving as ---- ---- confidential or would cause Issuer, the Company shall at a time when Issuer is otherwise in compliance with all its obligations under this Section 8, to be obligated to use its best efforts to advocate with the SEC for the registration of all in violation of the Registrable Securities in accordance with any publicly-available written federal securities laws or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”)rules and regulations thereunder. In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company Issuer will use its best reasonable efforts to file cause such registration statement first to become effective and then to remain effective for 270 days or until such earlier date as all shares registered shall have been sold by Grantee. In connection with the SECany such registration, as promptly as allowed Issuer and Grantee shall provide each other with representations, warranties, indemnities, contribution and other agreements customarily given in connection with such registrations. If requested by the SEC or Commission GuidanceGrantee in connection with such registration, Issuer shall become a party to one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement underwriting agreement (the “Additional Registration Statements”). For purposes managing underwriter(s) thereunder being approved by Issuer, such approval not to be unreasonably withheld or delayed) relating to the sale of this Agreementsuch shares, but only to the filing deadline extent of a New Registration Statement obligating Issuer in respect of representations, warranties, indemnities, contribution and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file other agreements customarily made by issuers in such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidanceunderwriting agreements.
(b) Subject to In the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreementevent that Grantee so requests, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all closing of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such sale or other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement Option Shares or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs registration statement filed pursuant to Section 8(a) shall be free of all restrictive legends. In connection therewith, if required by occur substantially simultaneously with the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness exercise of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementOption.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Stock Option Agreement (Rental Service Corp), Stock Option Agreement (Nationsrent Inc)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such form purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is then available to effect a registration for resale the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable SecuritiesSecurities have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Shares and all Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its best efforts (i) to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of during its entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses have satisfied this clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement), or (ii) any suspension of a Registration Statement is not declared effective by the qualification Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionefforts therefore, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions ceases for any reason to be effective and available to the Holders as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, to all Registrable Securities to which it is required to cover at any time prior to the end expiration of the Effective its Effectiveness Period, upon discovery that, for an aggregate of 20 Trading Days for all such events (any such failure or upon the happening breach being referred to as an “Event,” and for purposes of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existingclauses (i), and promptly prepare(ii) or for purposes of clause (iii) the date on which such twenty Trading Day period is exceeded, file with being referred to as “Event Date”), then, in addition to any other rights available to the SEC and furnish Holders under the Transaction Documents or under applicable law, (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a supplement penalty, equal to or an amendment 1.0% of the aggregate Investment Amount of such Prospectus as may be necessary so that Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Prospectus Event Date thereof (if the applicable Event shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make have been cured by such date) until the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriterdate payable, the Company shall 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 Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The parties agree that the Company will not be relieved liable for liquidated damages under this Section in respect of the Warrant Shares or the Additional Investment Right Shares. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any obligations it has hereunderportion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Company agrees to promptly Securities Act during the entire Effectiveness Period.
(d) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as "Event Date"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and month prior to the cure of an Additional Registration Statement shall be Event, except in the tenth (10th) day after case of the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidancefirst Event Date.
(be) Subject Each Holder agrees to furnish to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading completed Questionnaire in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish form attached to each this Agreement as Annex B (a "Selling Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legendsQuestionnaire"). In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Registration Rights Agreement (China Biopharmaceuticals Holdings Inc), Registration Rights Agreement (China Biopharmaceuticals Holdings Inc)
Registration. (a1) The Subject to the terms and conditions of this Agreement, the Company shallcovenants and agrees that as promptly as practicable after the Closing Date (and in any event, as soon as practicable(i) for all Registrable Securities other than the Series B Stock, but in no event later than March 31the date that is 30 days after the Closing Date and (ii) for the Series B Stock, 2016 (if the shares of Series B Stock are still outstanding and “Filing Deadline”Registrable Securities” pursuant to Section 4.9(k)(4), prepare no later than the date that is 120 days after the Closing Date), the Company shall have prepared and file filed with the SEC a one or more Shelf Registration Statements covering such Registrable Securities (or otherwise designate an existing Shelf Registration Statement covering filed with the resale of all Registrable Securities for an offering SEC to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on cover such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The , and, to the extent the Shelf Registration Statement has not theretofore been declared effective or is not automatically effective upon such filing, the Company shall use its reasonable best efforts (i) to cause such Shelf Registration Statement to be declared or become effective and to keep such Shelf Registration Statement continuously effective and in compliance with the Securities Act and usable for resale of such Registrable Securities for a period from the date of its initial effectiveness until the time as there are no such Registrable Securities remaining (including by refiling such Shelf Registration Statement (or a new Shelf Registration Statement) if the initial Shelf Registration Statement expires). Notwithstanding the foregoing, if on the filing deadlines referenced above the Company is not eligible to file a registration statement on Form S-3, then the Company shall not be obligated to file a Shelf Registration Statement unless and until requested to do so in writing by the SEC Investors.
(2) Any registration pursuant to this Section 4.9(a) shall be effected by means of a shelf registration under the Securities Act (unless it becomes effective automatically upon filinga “Shelf Registration Statement”) as promptly as possible after in accordance with the filing thereof, methods and shall respond to any comments received from distribution set forth in the SEC within ten (10) Business Days, and (ii) to keep such Shelf Registration Statement continuously effective under and Rule 415. If the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold Investors or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding Registrable Securities to whom the registration obligations set forth rights conferred by this Agreement have been transferred in compliance with this Section 8.16, if the SEC informs Agreement intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Company that and the Company shall take all reasonable steps to facilitate such distribution, including the actions required pursuant to Section 4.9(c). The lead underwriters in any such distribution shall be selected by the holders of a majority of the Registrable Securities to be distributed.
(3) The Company shall not be required to effect a registration (including a resale of Registrable Securities from an effective Shelf Registration Statement):
(A) with respect to securities that are not Registrable Securities or with respect to Registrable Securities that cannot, not be sold under a registration statement as a result of the application Transfer restrictions set forth herein;
(B) during any Scheduled Black-out Periods;
(C) if, during the 6-month period following the Closing, there is existing or pending any acquisition or probable acquisition, business combination or other similar transaction (a “Material Event”) that, in the good faith judgment of Rule 415 under the Securities ActBoard of Directors, would make it inappropriate or inadvisable to effect such registration to be registered effected at such time, in which event the Company shall have the right to defer such registration during such period until, in the good faith judgment of the Board of Directors, public disclosure of such Material Event or the omission to disclose such Material Event would not be prejudicial or contrary to the interests of the Company; or
(D) if the Company has notified the Investors and all other Holders that in the good faith judgment of the Board of Directors, it would be materially detrimental to the Company or its security holders for resale as such registration to be effected at such time, in which event the Company shall have the right to defer such registration for a secondary offering on period of not more than 45 days after receipt of the request of the Investors or any other Holder; provided, that such right to delay a single registration statementpursuant to this clause (D) shall be exercised by the Company (x) only if the Company has generally exercised (or is concurrently exercising) similar black-out rights (if any) against holders of similar securities that have registration rights and (y) not more than two times in any 12-month period and not more than 90 days in the aggregate in any 12-month period.
(4) If during any period when the Shelf Registration Statement is not effective or available, the Company agrees proposes to promptly (iregister any of its securities, other than a registration pursuant to Section 4.9(a)(1) inform each Holder or a Special Registration, and use its best efforts the registration form to file amendments to be filed may be used for the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number registration or qualification for distribution of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementSecurities, the Company shall be obligated give prompt written notice to use the Investors and all other Holders of its best efforts intention to advocate effect such a registration (but in no event less than ten days prior to the anticipated filing date) and shall include in such registration all Registrable Securities with respect to which the SEC Company has received written requests for inclusion therein within ten business days after the registration of all date of the Company’s notice (a “Piggyback Registration”). Any such person that has made such a written request may withdraw its Registrable Securities from such Piggyback Registration by giving written notice to the Company and the managing underwriter, if any, on or before the fifth business day prior to the planned effective date of such Piggyback Registration. The Company may terminate or withdraw any registration under this Section 4.9(a)(4) prior to the effectiveness of such registration, whether or not the Investors or any other Holders have elected to include Registrable Securities in accordance with any publicly-available written or oral guidancesuch registration.
(5) If the registration referred to in Section 4.9(a)(4) is proposed to be underwritten, comments, requirements or requests the Company shall so advise the Investors and all other Holders as a part of the SEC’s staff (“Commission Guidance”written notice given pursuant to Section 4.9(a)(4). In such event, the event right of the Investors and all other Holders to registration pursuant to this Section 4.9(a) shall be conditioned upon such persons’ participation in such underwriting and the inclusion of such persons’ Registrable Securities in the underwriting, and each such person shall (together with the Company amends and the other persons distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company. If any participating person disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Investors.
(6) If (x) the Company grants “piggyback” registration rights to one or more third parties to include their securities in an underwritten offering under the Shelf Registration Statement pursuant to Section 4.9(a)(2) or files (y) a New Piggyback Registration Statementunder Section 4.9(a)(4) relates to an underwritten primary offering on behalf of the Company, as and in either case the case may bemanaging underwriters advise the Company that in their reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), under clauses the Company shall include in such registration or prospectus only such number of securities that in the reasonable opinion of such underwriters can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities shall be so included in the following order of priority: (i) or first, in the case of a Piggyback Registration under Section 4.9(a)(4), the securities the Company proposes to sell, (ii) abovesecond, Common Stock and other securities of the Company will use its best efforts issued to file with the SECTreasury, as promptly as allowed by the SEC or Commission Guidance(iii) third, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on of the Registration Statement, as amended, Investors and all other Holders who have requested registration of Registrable Securities pursuant to Sections 4.9(a)(2) or the New Registration Statement (the “Additional Registration Statements”4.9(a)(4). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by pro rata on the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all basis of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing aggregate number of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities securities or shares owned by it that are included in each such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, person and (iv) fourth, any other securities of the existence of any fact or the happening of any event Company that causes the Company have been requested to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance ofbe so included, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior subject to the end terms of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementthis Agreement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Investment Agreement (Sterling Financial Corp /Wa/), Investment Agreement (Sterling Financial Corp /Wa/)
Registration. (a) The If at any time after the 30-month anniversary of the Effective Date (or in connection with any Lock-up Exception Offering permitted under clause 5.02(a)(viii)) the Company receives a written request from the Investors’ Representative, on behalf of the Investors, that the Company register Registrable Securities under the Securities Act, then the Company shall, as soon promptly as reasonably practicable, but in no event not later than March 31the 30th day after receipt of such written request (any such date of filing, 2016 (the “Filing DeadlineDate”), prepare and file with the SEC a Registration Statement covering providing for the resale offer and sale for cash by the Investors of all the Registrable Securities not already covered by an existing and effective Registration Statement (giving effect to any amendments thereto) for an offering to be made on a delayed or continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be, at the election of the Investors’ Representative on behalf of the Investors, on Form S-1 or another appropriate form for such form of Registration Statement purpose) and, if the Company is a WKSI as is then available to effect a registration for resale of the Registrable Securities)Filing Date, shall be an Automatic Shelf Registration Statement. The Thereafter, the Company shall use its best commercially reasonable efforts (i) to cause any such Registration Statement to be declared effective by the SEC or otherwise to become effective under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after reasonably practicable but, in any event, no later than the filing thereofEffectiveness Deadline, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Company Common Shares subject to this Article III cease to be Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Effectiveness Period”). Such Registration Statement shall not include .
(b) At any Ordinary Shares time and from time to time on or other securities for after the account 30-month anniversary of the Effective Date (or in connection with any Lock-up Exception Offering permitted under clause 5.02(a)(viii)), upon the written request (a “Demand Notice”) of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs Investor requesting that the Company that all effect an Underwritten Offering of Registrable Securities of the Registrable Securities cannot, as Investors (a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement“Demand Offering”), the Company agrees to promptly (i) inform each Holder and shall use its best commercially reasonable efforts to file amendments to the Registration Statement effect, as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”)promptly as reasonably practicable, in either case covering the maximum number an Underwritten Offering of such Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offeringSecurities; provided, however, (w) at the time of the Demand Offering, there shall be an existing and effective Registration Statement pursuant to Section 3.01(a) that prior covers the Registrable Securities for which a Demand Offering has been requested or the Company shall then be WKSI eligible, (x) with respect to filing such amendment or New Registration Statementany Registrable Securities, the Company shall be obligated to use its best efforts effect no more than one Roadshow Offering in any 12-month period (provided, that if any such Roadshow Offering is reasonably likely to advocate with be completed outside of such 12-month period, the SEC for the registration of all of Company’s obligations to effect such Demand Offering shall continue) and (y) the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests for which a Demand Offering has been requested will have a value (based on the average closing price per share of Company Common Shares for the SEC’s staff ten trading days preceding the delivery of such Demand Notice) of not less than $150,000,000. Each such Demand Notice will specify the number of Registrable Securities owned by the demanding Investors and the number of Registrable Securities proposed to be offered for sale and will also specify the intended method of distribution thereof.
(“Commission Guidance”). c) In the event of a Demand Offering, the Underwriters (including the lead Underwriter) for such Demand Offering will be a nationally recognized investment bank selected by the Investors’ Representative on behalf of the Investors with the approval of the Company amends (which approval shall not be unreasonably withheld).
(d) Notwithstanding anything to the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of contrary in this Agreement, the filing deadline Investors may not request a Demand Offering during a period commencing upon the date of a New Registration Statement the public announcement of (or such earlier date that is not more than 30 days prior to such public announcement if the Company has given notice to the Investors’ Representative that it so intends to publicly announce) an Underwritten Offering of Company Common Shares by the Company (for its own account or for any other security holder in each case provided the Investors are entitled to participate in such offering pursuant to Section 3.02) and an Additional Registration Statement shall be the tenth ending (10thi) day 90 days after the date consummation of such Underwritten Offering, (ii) 30 days after the Company has given notice to the Investors’ Representative that it intends to publicly announce an Underwritten Offering if no such Underwritten Offering has been publicly announced within such 30-day period, (iii) upon withdrawal of such Underwritten Offering if it has been publicly announced but not commenced or (iv) upon written notice to the Investors’ Representative that the Company is allowed no longer intends to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidanceconduct an Underwritten Offering.
(be) Subject The Investors will be permitted to rescind a Demand Notice or request the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration removal of any Registrable Securities under this Agreementheld by them from any Demand Offering at any time (so long as, in the Company shallcase of a Demand Offering, as expeditiously as possible:
(i) prepare and file with the SEC after such removal it would still constitute a Registration Statement Demand Offering, including with respect to the required value thereof under Section 3.01(b)); provided, however, that, if the Investors rescind a Roadshow Offering, such Registrable Securities and use its best efforts Roadshow Offering will nonetheless count as a Roadshow Offering for purposes of determining when future Roadshow Offerings can be requested by the Investors pursuant to cause a Registration Statement that registers such Registrable Securities to become effectivethis Section 3.01, and keep such Registration Statement effective until unless the Investors reimburse the Company for all of Offering Expenses incurred by the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used Company in connection with such Roadshow Offering (provided, the Investors shall not be required to so reimburse the Company for the Company’s out-of-pocket expenses incurred to prepare and file any Registration Statement as may be necessary pursuant to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iiiSection 3.01(a) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect necessary to the issuance by the SEC of any stop order suspending maintain the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register internal expenses (including all salaries and expenses of members of Ordinary Shares its officers and employees performing legal or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementaccounting duties)).
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Shareholder Agreement (Genpact LTD), Shareholder Agreement (Genpact LTD)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), will use commercially reasonable efforts to prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement (i) shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such form purpose) and, if the Company is a WKSI as of the Filing Date, shall be an Automatic Shelf Registration Statement as is then available and (ii) shall contain (except if otherwise requested by the Electing Holders or required pursuant to effect written comments received from the Commission upon a registration for resale review of such Registration Statement) the Registrable Securities)Plan of Distribution. The Company shall will use its best commercially reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and will use their commercially reasonable efforts to keep the Registration Statement (ior a replacement Registration Statement) continuously effective under the Securities Act until the registration rights under this Agreement terminate in accordance with Section 2(d) (the “Effectiveness Period”). In addition, the Company will, promptly and from time to time, use commercially reasonable efforts to file such additional Registration Statements to cover resales of any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement no later than the Filing Date with respect thereto, and will use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the SEC or otherwise to become effective under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible practicable after the filing thereofapplicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) will use their commercially reasonable efforts to keep such the Registration Statement continuously effective under the Securities Act until such date as is at all times during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement; provided that, the Company agrees will not be obligated to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw update the Registration Statement and file a new no sales may made under the applicable Registration Statement (a “New Registration Statement”), in either case covering during any Black-Out Period of which the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission GuidanceHolders have received notice.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
If: (i) prepare and file with the SEC a any Registration Statement with respect is not filed on or prior to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect theretoFiling Date, (ii) of the receipt a Registration Statement is not declared effective by the Company of any notification with respect Commission or does not otherwise become effective on or prior to the issuance by the SEC of any stop order suspending the effectiveness of its required Effectiveness Date or (iii) after its Effective Date, such Registration Statement or Prospectus or ceases for any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect reason to the suspension of the qualification of such be effective as to all Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts which it is required to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, cover at any time prior to the end expiration of the Effective Effectiveness Period (in each case, except as specifically permitted herein with respect to any applicable Black-Out Period, upon discovery that, ) (any such failure or upon the happening of any event breach being referred to as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a “Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementDefault”).
(c) The Company understands that each Holder disclaims being shall not, from the date hereof until the Effective Date of the initial Registration Statement, prepare and file with the Commission a registration statement relating to an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved offering of any obligations it has hereunderof its securities for its own account or the account of others under the Securities Act.
(d) The registration rights granted under this Section 2 shall automatically terminate upon the earlier of (i) such time as there are no outstanding Registrable Securities and (ii) June 3, 2019.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Netflix Inc)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereofEffectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act until such the date as which is the earlier earliest of (xi) five years after its Effective Date, (ii) such time as all of the date on which all Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (yiii) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that such time as all of the Registrable Securities cannot, covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as a result of determined by the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, counsel to the Company agrees pursuant to promptly a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (i) inform each Holder and use its best efforts to file amendments to the “Effectiveness Period”); provided, that, during the Effectiveness Period, the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted may cease to be registered by effective for no more than 60 Trading Days (not more than 15 Trading Days of which shall be consecutive) during any 365 calendar day period. By 9:30 a.m. (New York City time) on the SEC, on Form F-3 or such other form available to register for resale Trading Day immediately following the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementEffective Date, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written or oral guidance, comments, requirements or requests of Rule 424 under the SEC’s staff (“Commission Guidance”). In Securities Act the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts final prospectus to file be used in connection with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or sales pursuant to such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”whether or not such filing is technically required under such Rule). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject Each Holder agrees to furnish to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading completed Questionnaire in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish form attached to each this Agreement as Annex B (a “Selling Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legendsQuestionnaire”). In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of any obligations it has hereundera Holder in a Registration Statement who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date thereof (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Magnetar Capital Partners LP), Registration Rights Agreement (Think Partnership Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Company agrees to promptly Securities Act during the entire Effectiveness Period.
(d) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as "Event Date"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statementcure of an Event, except in the case of the first Event Date.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Bluebook International Holding Co), Registration Rights Agreement (Bluebook International Holding Co)
Registration. (ai) The Company shallshall prepare and file or cause to be prepared and filed with the Commission, as soon as practicable, but in no event later than March 31April 30, 2016 2025 (the “Filing Deadline”), prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities registration statement for an offering to be made on a continuous basis pursuant to Rule 415415 of the Securities Act registering the resale from time to time by the Holder of all Registrable Securities held by the Holder (the “Resale Registration Statement”). Such The Resale Registration Statement shall be on Form F-3 (or, if the use of Form F-3 is not then available to the Company, on Form F-1 or such other appropriate form permitting registration of Registration Statement as is then available to effect a registration such Registrable Securities for resale of by the Registrable Securities)Holder. The Company shall use its reasonable best efforts (i) to cause such the Resale Registration Statement to be declared effective as soon as possible after filing, but in no event shall the Resale Registration Statement be declared effective later than the earlier of (i) sixty (60) days following the Filing Deadline or (ii) ten (10) Business Days after the Commission notifies the Company that it will not review the Resale Shelf Registration Statement, if applicable (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended by no more than ninety (90) days after the Filing Deadline if the Registration Statement is reviewed by, and receives comments from, the Commission. Once effective, the Company shall keep the Resale Registration Statement continuously effective and supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, to ensure that another registration statement is available, under the Securities Act at all times until such date as all Registrable Securities covered by the SEC Resale Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn (the “Effectiveness Period”). The Resale Registration Statement shall contain a prospectus in such form as to permit the Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (unless it becomes or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective automatically upon filing) as promptly as possible after the filing thereofdate for such Registration Statement, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep provide that such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 any method or combination of methods legally available to, and requested by, the Holder.
(ii) The Company shall notify the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth Holder in this Section 8.16, if the SEC informs the Company that all writing of the Registrable Securities cannot, as a result effectiveness of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Resale Registration Statement as required by soon as practicable, and in any event within one (1) Business Day after the SEC and/or (ii) withdraw the Resale Registration Statement becomes effective, and file a new shall furnish to Holder, without charge, such number of copies of the Resale Registration Statement (a “New Registration Statement”including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 Resale Shelf Registration Statement or such other form available documents as the Holder may reasonably request in order to register for resale facilitate the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all sale of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In manner described in the event the Company amends the Registration Statement or files a New Resale Registration Statement, as .
(iii) Subject to the case may be, under clauses (i) or (iiprovisions of Section 4(a)(i) above, the Company will use its best efforts to file with the SEC, as shall promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect Commission from time to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC time such amendments and supplements to such (or replacements of) the Resale Registration Statement and the Prospectus prospectus used in connection with such Registration Statement therewith as may be necessary to keep the Resale Registration Statement (or replacements thereof) effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(ivduring the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section 4(a)(i) notify each Holder is filed on Form F-3 and its counsel in writing (i) of the receipt by thereafter the Company becomes ineligible to use such registration statement for secondary sales, the Company shall promptly notify the Holder of any notification with respect such ineligibility and shall file a shelf registration on Form F-1 or other appropriate form as promptly as practicable (but no later than 14 calendar days after becoming ineligible to any comments by use Form F-3) to replace the SEC with respect to such Resale Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid have the issuance ofsuch replacement Resale Registration Statement declared effective as promptly as practicable and shall cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Resale Shelf Registration Statement is available or, if issuednot available, obtain that another Resale Registration Statement is available, for the withdrawal resale of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of all the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested held by the Investor;
(vii) immediately notify each HolderHolder until all such Registrable Securities have been sold; provided, however, that at any time prior the Company once again becomes eligible to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the DepositaryForm F-3, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the such replacement Resale Registration Statement to be delivered to such agent amended, or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the shall file a new replacement Resale Registration Statement, such that the Resale Registration Statement is once again on Form F-3.
(civ) The Company understands represents and warrants that each Holder disclaims being an underwriterthere are sufficient ADRs registered on a registration statement on Form F-6 and available for issuance in respect of all Warrant ADSs issuable hereunder, but in the event any Holder is deemed an underwriter, and the Company shall not be relieved covenants that it will cause a sufficient number of any ADRs to remain registered on a registration statement on Form F-6 and available for issuance to satisfy the Company’s obligations it has hereunderhereunder at all times that this Warrant is outstanding.
Appears in 2 contracts
Sources: Security Agreement (Trinity Biotech PLC), Security Agreement (Trinity Biotech PLC)
Registration. (a) The Company shallshall prepare and file, as soon as practicable, but in no event later than March 31, 2016 two (2) months after the Closing Date (the “Filing Deadline”), prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of InvestorPurchaser. Notwithstanding the registration obligations set forth in this Section 8.165.18, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a5.18(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇the Electronic Data Gathering, Analysis and Retrieval system of the SEC, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (iA) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (iiB) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iiiC) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (ivD) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405405 of the Securities Act;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (iA) any order suspending the effectiveness of the Registration Statement, or (iiB) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the InvestorPurchaser;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor Purchaser under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Ark Pacific Investment Management LTD)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC a Commission the Registration Statement covering the resale of all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement required hereunder shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable SecuritiesSecurities on Form S-3, in which case the Registration shall be on another appropriate form in accordance herewith). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall respond use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any comments received from reason the SEC within ten Commission does not permit all of the Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall contain (10except if otherwise directed by the Holders) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall use its best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and (ii) shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective during its entire Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company understands that each Holder disclaims being an underwriter, but in files a Registration Statement without affording the event any Holder is deemed an underwriterHolders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be relieved deemed to have satisfied this clause (i)), or (ii) prior to the date when such Registration Statement is first declared effective by the Commission, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within 30 calendar days (the “Response Date”) after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be declared effective, or (iii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before its Effectiveness Date, or (iv) during the Effectiveness Period, a Registration Statement ceases for any obligations reason to remain continuously effective as to all Registrable Securities for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any and all such cases for more than an aggregate of 20 Trading Days (the “Grace Period”) during any 12-month period during the Effectiveness Period (which need not be consecutive Trading Days)(any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (iii) the date on which such Event occurs, or for purposes of clause (ii) the date which such 30 calendar days is exceeded, or for purposes of clause (iv) the date on which such 20 Trading Days is exceeded being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. Notwithstanding the foregoing, any day on which a Force Majeure has hereunderoccurred or is continuing shall not count toward the calculation of the number of days for the Filing Date, the Effectiveness Date, the Response Date and a Grace Period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dor Biopharma Inc), Registration Rights Agreement (Dor Biopharma Inc)
Registration. (a) The On or prior to the Filing Date, the Company shallshall (without any request, as soon as practicable, but in no event later than March 31, 2016 demand or notice from the Holders or any other Person) either (the “Filing Deadline”), prepare and i) file with the SEC Commission a “Shelf” Registration Statement covering the resale of all the Registrable Securities on such Filing Date for an offering to be made on a continuous basis pursuant to Rule 415415 or (ii) include the Registrable Securities, covering their resale, in a Registration Statement filed by the Company with the Commission that may have included therein other shares of Common Stock. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the Companyterms of this Agreement, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, but in any event prior to the Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such the Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold sold, or (y) the date on which the Registrable Securities may be sold without any restriction volume restrictions pursuant to Rule 144 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Holders (the “Effective Effectiveness Period”). Such The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 pm Eastern Time on a Trading Day. The Company shall immediately notify the Holders via facsimile of the effectiveness of the Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of the Registration Statement. The Company shall, by 9:30 am Eastern Time on the Trading Day after the Effective Date, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holders within one Trading Day of such notification of effectiveness or failure to file a final Prospectus as aforesaid shall be deemed an Event under Section 2(b).
b) If: (i) the Registration Statement is not filed on or prior to the Filing Date (if the Company files the Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a), the Company shall not include any Ordinary Shares be deemed to have satisfied this clause (i)), or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs (ii) the Company that all of fails to file with the Registrable Securities cannot, as Commission a result of the application of request for acceleration in accordance with Rule 415 461 promulgated under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number within five Trading Days of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed,” or Additional Registration Statementnot subject to further review, as applicable, by the SEC or Commission Guidance.
(biii) Subject prior to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this AgreementEffectiveness Date, the Company shall, as expeditiously as possible:
(i) prepare fails to file a pre-effective amendment and file with the SEC a Registration Statement with respect otherwise respond in writing to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled comments made by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, Commission in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of within 10 calendar days after the receipt of comments by or notice from the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so Commission that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact amendment is required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of order for the Registration Statement to be delivered declared effective, or (iv) the Registration Statement filed or required to such agent be filed hereunder is not declared effective by the Commission by its Effectiveness Date for reasons that are beyond the reasonable control of the Company, or (v) after the Effectiveness Date, the Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be effective, or the Depositary, together with any other authorizations, certificates and directions requested by such agent or Holders are otherwise not permitted to utilize the Depositary, which authorize and direct such agent or the Depositary Prospectus therein to issue resell such Registrable Securities without legend upon sale for more than 10 consecutive calendar days or more than an aggregate of 15 calendar days during any 12-month period (which need not be consecutive calendar days) (any such failure or breach being referred to as an “Event”, and for purposes of clause (i) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clause (iii) the date which such 10 calendar day period is exceeded, or for purposes of clause (v) the date on which such 10 or 15 calendar day period, as applicable, is exceeded being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder applicable Event is deemed an underwritercured, the Company shall pay, as partial liquidated damages and not as a penalty, to the Holders, at Holders’ option, either an amount in cash, or shares of Common Stock with a VWAP, equal to the LD Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be relieved paid by applicable law) to the Holders, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of any obligations it has hereundera month prior to the cure of an Event.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cord Blood America, Inc.), Registration Rights Agreement (Cord Blood America, Inc.)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable Securities). Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which is two years after the Closing Date or such earlier date when all Registrable Securities covered by such Registration Statement have been publicly sold or (y) the date on which the Registrable Securities may be sold without any restriction volume restrictions pursuant to Rule 144 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effective Effectiveness Period”). Such Registration Statement shall .
(b) If for any reason the Commission does not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that permit all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, to be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to included in the Registration Statement as required filed pursuant to Section 2(a), or for any reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the SEC and/or (ii) withdraw the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and file a new effective Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted for an offering to be registered by the SECmade on a continuous basis pursuant to Rule 415, on Form F-3 or such other form available S-3 (except if the Company is not then eligible to register for resale the Registrable Securities as on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a secondary offering; provided, however, that prior to filing review of such amendment or New Registration Statement, ) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be obligated to declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its best efforts to advocate with keep such Registration Statement continuously effective under the SEC Securities Act during the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on or before its Effectiveness Date, or (iii) during the Effectiveness Period, a Registration Statement ceases for the registration of any reason to remain continuously effective as to all of the Registrable Securities for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in accordance with any publicly-available written and all such cases for more than an aggregate of 20 Trading Days during such Effectiveness Period (which need not be consecutive Trading Days) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Days is exceeded being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; provided, that if an Event shall have occurred and be continuing after the 180th day following the Closing Date, the liquidated damages described above shall be calculated by substituting 2.0% in place of 1.5%; and provided further, that no more than one Event shall be deemed to have occurred and not to have been cured at any time, and such payments shall not be cumulative, so that no more than one payment under the foregoing clauses shall be due in any month to any one Holder (except for amounts owing on account of prior periods). If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statementcure of an Event, except in the case of the first Event Date.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) hereof to such Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Airnet Communications Corp), Registration Rights Agreement (Airnet Communications Corp)
Registration. (a) To the extent that a Registration Statement filed pursuant to Section 2(b) or a Shelf Registration Statement is not then effective covering the Registrable Securities that are the subject of the applicable Demand Registration, each Investor may request that the Company register under the Securities Act all or any portion of its Registrable Securities pursuant to a Registration Statement on Form ▇-▇, ▇-▇ or any successor form thereto with respect to a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form ▇-▇, ▇-▇ or any successor form thereto covering all of the Registrable Securities that the holders thereof have requested to be included in such Long-Form Registration within 60 days after the date on which the initial request is given and shall use its best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter.
(b) The Company shall, as soon as practicable, but in any event within forty-five (45) days after the Closing Date, file (or confidentially submit) a Registration Statement to permit the public resale of all the Registrable Securities held by the Investors from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2(b) and shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than March 31the earlier of (i) the 105th day (or 165th day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing Date and (ii) the 10th business day after the date the Company is notified (orally or in writing, 2016 whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Filing Effectiveness Deadline”), prepare and file . The Registration Statement filed with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis Commission pursuant to Rule 415. Such Registration Statement this Section 2(b) shall be on Form F-3 (oror S-3, or if Form F-3 or S-3 is not then available to the Company, on Form F-1 or S-1 or such other form of Registration Statement registration statement as is then available to effect a registration for the sale or resale of such Registrable Securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Investor to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 2(b) shall provide for the sale or resale pursuant to any method or combination of methods legally available to, and requested by, the Investors. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to Section 2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for the resale of all the Registrable Securities held by the holders of Registrable Securities until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2(b), but in any event within one (1) business day of such date, the Company shall notify the Investors of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities.
(c) The Company shall use its best efforts (i) to cause such Registration Statement qualify and remain qualified to be declared effective by register the SEC offer and sale of securities under the Securities Act (unless it becomes effective automatically upon filing) pursuant to a Registration Statement on Form ▇-▇, ▇-▇ or any successor form thereto. As soon as promptly as possible practicable after the filing thereofdate hereof, and shall respond to any comments received from but not later than the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementTarget Filing Date, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with (or confidentially submit to) the SEC Commission a Registration Statement with respect on Form ▇-▇, ▇-▇ or the then appropriate form for an offering to such Registrable Securities and use its best efforts be made on a delayed or continuous basis pursuant to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of Rule 415 under the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such or any successor rule thereto (a “Shelf Registration Statement;
(iii”) furnish that covers all Registrable Securities then outstanding for an offering to each Holder be made on a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of delayed or continuous basis pursuant to Rule 415 under the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus Act or any amendment or supplement successor rule thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an a “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.Shelf
Appears in 2 contracts
Sources: Registration Rights Agreement (System1, Inc.), Registration Rights Agreement (System1, Inc.)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such form purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is then available to effect a registration for resale the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable SecuritiesSecurities have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Shares and all Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by its Filing Date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its best efforts (i) to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of during its entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses have satisfied this clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement), or (ii) any suspension of a Registration Statement is not declared effective by the qualification Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionefforts therefore, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions ceases for any reason to be effective and available to the Holders as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, to all Registrable Securities to which it is required to cover at any time prior to the end expiration of the Effective its Effectiveness Period, upon discovery that, for an aggregate of 20 Trading Days for all such events (any such failure or upon the happening breach being referred to as an “Event,” and for purposes of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existingclauses (i), and promptly prepare(ii) or for purposes of clause (iii) the date on which such twenty Trading Day period is exceeded, file with being referred to as “Event Date”), then, in addition to any other rights available to the SEC and furnish Holders under the Transaction Documents or under applicable law, (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a supplement penalty, equal to or an amendment 1.0% of the aggregate Investment Amount of such Prospectus as may be necessary so that Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Prospectus Event Date thereof (if the applicable Event shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make have been cured by such date) until the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriterdate payable, the Company shall 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 Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The parties agree that the Company will not be relieved liable for liquidated damages under this Section in respect of the Warrant Shares. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any obligations it has hereunderportion of a month prior to the cure of an Event other than with respect to the initial Event Date thereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) In connection with the Merger, on or prior to the Filing Date contemplated in clause (a) of the definition of “Filing Date,” the Company shall prepare and file a Registration Statement on Form S-4 (or such other appropriate form for such purpose) registering the issuance of all of the Shares by the Company to the holders thereof upon the effective time of the Merger. The Company shall, shall cause such Registration Statement to be declared effective under the Securities Act as soon as practicablepossible but, but in no event later than March 31any event, 2016 by its Effectiveness Date.
(b) On or prior to the Filing Date contemplated in clause (b) of the definition of “Filing Deadline”), Date,” the Company shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose, including Form F-1 in the event that the Commission shall require such Registration Statement to be on such Form). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such the date as which is the earlier earliest of (xi) five years after its Effective Date, (ii) such time as all of the date on which all Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders, or (iv) if the Registration Statement contemplated by Section 2(a) has been declared effective and the Share exchange contemplated by Section 4.1(d) of the Purchase Agreement shall have occurred and the resale by one or more Holders of the resulting Shares shall be subject to the limitations imposed under Rule 145, such time as all Shares then beneficially owned by such Holders can be resold in full without such Rule 145 limitations (the “Effectiveness Period”). By 5:00 p.m. (New York City time) on the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If the Registration Statement contemplated by Section 2(a) has been declared effective and the Share exchange contemplated by Section 4.1(d) of the Purchase Agreement shall have occurred, then the Company only is required to name as selling stockholders in a Registration Statement under this Section 2(b) those Holders who will be subject to Rule 145 limitations. Notwithstanding anything to the contrary set forth in this Agreement, in the event that (x) the Registration Statement contemplated by Section 2(a) has been declared effective, (y) the Share exchange contemplated by Section 4.1(d) of the Purchase Agreement shall have occurred, and (z) the resale by none of the Holders of the resulting Shares shall be subject to the limitations imposed under Rule 145, then the Company shall not be required to cause the Registration Statement filed pursuant to this Section 2(b) to be declared effective.
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale (or Form F-3 if then applicable to the Company), if the Company would then still be sold without any restriction pursuant required to Rule 144 have a Registration Statement under Section 2(b) effective, then the Company shall file a Registration Statement on Form S-3 (or Form F-3 as applicable) prior to the Filing Date contemplated in clause (c) of the definition of “Effective Period”Filing Date,” covering the Registrable Securities (or a post-effective amendment on Form S-3 (or Form F-3 as applicable) to the then effective Registration Statement). Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, the Company agrees to promptly (i) inform each Holder by its Effectiveness Date, and shall use its reasonable best efforts to file amendments to the keep such Registration Statement as required by continuously effective under the SEC and/or Securities Act during the entire Effectiveness Period. By 5:00 p.m. (iiNew York City time) withdraw on the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number Effective Date of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or oral guidancenot such filing is technically required under such Rule).
(d) If: (i) a Registration Statement filed pursuant to Section 2(a) or Section 2(b) or Section 2(c) is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, commentsthe Company shall not be deemed to have satisfied this clause (i)), requirements or requests (ii) a Registration Statement filed pursuant to Section 2(a) or Section 2(b) or Section 2(c) is not declared effective by the Commission on or prior to its required Effectiveness Date (but not in the case of the SEC’s staff (“Commission Guidance”). In the event the Company amends Registration Statements under Section 2(b) and Section 2(c) if the Registration Statement under Section 2(b) is not required to be declared effective in accordance with the last sentence of Section 2(b)), or files if by the Business Day immediately following the Effective Date the Company shall not have filed a New “final” prospectus for the Registration StatementStatement with the Commission under Rule 424(b) in accordance with Section 2(b) or Section 2(c) herein, as the case may bebe (whether or not such a prospectus is technically required by such Rule), under or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, a Registration Statement filed pursuant to Section 2(b) or Section 2(c) ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: for each calendar month from the applicable Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement until the applicable Event is cured. The parties agree that the Company will use its best efforts not be liable for liquidated damages under this Section in respect of the Warrants. In no event will the Company be liable for damages in excess of 1.0% of the aggregate Investment Amount of the Holders in any 30-day period. The partial liquidated damages pursuant to file the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date; provided, that the maximum aggregate liquidated damages payable to a Holder under this Section 2(d), when aggregated with any liquidated damages payable pursuant to Section 4.12 of the SECPurchase Agreement, shall not exceed ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement filed pursuant to Section 2(b) or Section 2(c) and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) as to such Registration Statements to any Holder in connection therewith who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (China Security & Surveillance Technology, Inc.)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC a Commission the Registration Statement covering the resale of all the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith). Not less than ten business days prior to filing of the Registration Statement, the Company shall provide each Holder with a copy of the Registration Statement proposed to be filed and shall consider all appropriate comments that are timely provided by such Holder with respect to the CompanyRegistration Statement. Subject to the terms of this Agreement, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its commercially reasonable best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, but in any event prior to the Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act until the earlier of (i) all Registrable Securities covered by the Registration Statement have been sold, or (ii) subject to the next successive sentence, (A) Hercules, together with any of its affiliates, owns less than 10% of the issued and outstanding Common Stock and (B) the Registrable Securities may be sold free of any restrictions under Rule 144 (the “Effectiveness Period”). Upon the Registration Statement ceasing to be effective in connection with clause (ii) of this section, the Company shall take, at its sole expense, such further action, including the provision of a legal opinion, as any Holder may reasonably request from time to time to enable such Holder to sell the Registrable Securities without registration under the Securities Act.
(b) The Company shall notify the Holders via facsimile or electronic mail of the effectiveness of the Registration Statement within three Trading Days of the Company telephonically confirming effectiveness with the Commission. The Company shall, by 9:30 AM Eastern Time on the Trading Day that is three Trading Days after the Effectiveness Date, file a Form 424(b)(5) with the Commission.
(c) If (i) the Registration Statement is not declared effective by the Commission within 250 days of September 13, 2010, or (ii) following the date in clause (i), the Registration Statement covering the Registrable Shares ceases to be effective or usable at any time during the Effectiveness Period (without being succeeded on the same date immediately by a post-effective amendment or supplement to the Registration Statement that cures such failure and that is itself, in the case of a post-effective amendment, declared effective within ten Trading Days of filing with the Commission) or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities for 20 consecutive Trading Days or in any individual case an aggregate of 30 Trading Days during any twelve-month period (which need not be consecutive Trading Days) (any of the foregoing being a “Registration Default” and for purposes of clause (i) the date on which such Registration Default occurs, or for purposes of clause (ii) the date on which such 20 or 30 Trading Day period, as applicable, is exceeded, each being a “Registration Default Date”) then, subject to Section 3, the Company shall pay to each Holder an amount in cash, as liquidated damages and not a penalty (“Liquidated Damages”): (A) equal to $25,000 on the Registration Default Date, and (B) on the 30th day thereafter and at the end of each subsequent 30-day period until such Registration Default is cured, equal to $25,000 on each such date, provided, however, that the sum of such amounts shall not exceed $500,000. The foregoing represents the sole monetary remedy to any Holder in connection with any Registration Default. The Company shall pay the Holders any Liquidated Damages on the Registration default Date, the day that is 30 days thereof and at the end of each subsequent 30-day period. If the Company fails to pay any Liquidated Damages pursuant to this Section in full, the Company will pay interest thereon at a rate of 8% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. A Registration Default under clause (i) above shall be cured on the date that the Registration Statement is filed with the SEC and a Registration Default under clause (ii) above shall be cured on the date that the Registration Statement covering the Permitted Shares is declared effective by the SEC or is otherwise usable. Notwithstanding the foregoing, no Liquidated Damages shall accumulate as to any Registrable Security from and after the earlier of (x) the date on which all such security is no longer a Registrable Securities covered by such Registration Statement have been sold or Security and (y) expiration of the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 Effectiveness Period.
(the “Effective Period”). Such Registration Statement d) The Company shall not include be liable for any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Liquidated Damages under Section 8.16, 2(c) if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities Holders are not permitted to be registered by utilize the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that Prospectus because the Company is allowed to file such New Registration Statement negotiating a merger, consolidation, acquisition or Additional Registration Statement, as applicable, by the SEC sale of all or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until substantially all of its assets or a similar transaction which, in the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions good faith judgment of the Securities Act and the Exchange Act with respect to the disposition Board of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇Directors, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of requires the Registration Statement to be delivered amended to include information in connection with such agent pending transaction (including the parties thereto) and such information is not yet available or publicly disclosable, or the DepositaryCompany is otherwise aware of such other material non-public information which, together with any in the good faith judgment of the Board of Directors, requires the Registration Statement to be amended to include such other authorizationsmaterial non-public information and such information is not yet publicly disclosable, certificates for an aggregate of 30 consecutive days.
(e) Each Holder agrees to furnish to the Company (i) a completed selling stockholder questionnaire not more than ten Trading Days before the filing of the Registration Statement and directions requested by (ii) such agent other information the Company reasonably requires to prepare the Registration Statement. Each Holder further agrees that it shall not be entitled to be named as a selling stockholder in the Registration Statement or use the Depositary, which authorize Prospectus for offers and direct such agent or the Depositary to issue such resales of Registrable Securities without legend upon sale at any time, unless such Holder has returned this information to the Company. Each Holder acknowledges and agrees that the information in the selling stockholder questionnaire or request for further information as described in this Section 2(e) will be used by the Investor under Company in the preparation of the Registration Statement and hereby consents to the inclusion of such information in the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best reasonable commercial efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities covered by such Registration Statement may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 (144(k), as determined by the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs counsel to the Company that all of pursuant to a written opinion letter to such effect, addressed and acceptable to the Registrable Securities cannotCompany's transfer agent and the affected Holders (each, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly an "Effectiveness Period").
(b) If: (i) inform each Holder and use its best efforts to file amendments any Registration Statement is not filed on or prior to the applicable Filing Date for such Registration Statement as required by the SEC and/or Statement; (ii) withdraw the a Registration Statement filed hereunder is not declared effective by the Commission by the applicable Effectiveness Date; (iii) after a Registration Statement is filed with and file declared effective by the Commission, a new Discontinuation Event (as hereafter defined) shall occur and be continuing, or such Registration Statement ceases to be effective (by suspension or otherwise) as to all Registrable Securities to which it is required to relate at any time prior to the expiration of the Effectiveness Period applicable to such Registration Statement (a “New without being succeeded immediately by an additional Registration Statement”Statement filed and declared effective), for a period of time which shall exceed 30 days in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 aggregate per year or such other form available to register for resale the Registrable Securities more than 20 consecutive calendar days (defined as a secondary offeringperiod of 365 days commencing on the date such Registration Statement is declared effective); providedor (iv) the Common Stock is not listed or quoted, however, that prior to filing such amendment or New Registration Statement, is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall be obligated not have been able to use its best efforts to advocate with the SEC for the registration of all cure such trading suspension within 30 days of the Registrable Securities in accordance with notice thereof or list the Common Stock on another Trading Market); (any publicly-available written such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 day or 20 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) the date on which such three (3) Trading Day period is exceeded, being referred to as "Event Date"), then as partial relief for the damages to the Purchaser by reason of the occurrence of any such Event (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject pay to the requirements Purchaser for each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of Section 8.16(athe product of: (A) regarding the Filing Deadlinethen outstanding principal amount of the Note multiplied by (B) 0.02 (or, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all an Event of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements type referred to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, clause (ii) of this Section 2(b) that occurs in connection with the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such initial Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary filed hereunder, 0.015 for the first 30 day period following the applicable Effectiveness Date, and 0.02 thereafter).In the event the Company fails to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee payments pursuant to this Section 2(b) in a Registration Statementtimely manner, which ADSs such payments shall be free bear interest at the rate of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement1.5% per month (prorated for partial months) until paid in full.
(c) The Company understands that each Holder disclaims being an underwriter, but in Within three business days of the event any Holder is deemed an underwriterEffectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
Appears in 1 contract
Sources: Minimum Borrowing Note Registration Rights Agreement (Farmstead Telephone Group Inc)
Registration. (a) The Following the date hereof the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall use its commercially reasonable best efforts to prepare and file with the SEC Commission a Registration Statement on Form S-3 covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereofEffectiveness Deadline, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act until such the date as which is the earlier of (xi) one year after the date on which Closing Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been sold by the Holders, or (yiii) the date on which such time as all of the Registrable Securities may be sold without any restriction become eligible for resale by non-affiliates pursuant to Rule 144 (the “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
If: a Registration Statement (i) prepare and file with is not declared effective by the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect Commission on or prior to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration StatementEffectiveness Deadline, or (ii) any suspension of after its Effective Date, without regard for the qualification (reason thereunder or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionefforts therefore, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions ceases for any reason to be effective and available to the Holders as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, to all Registrable Securities to which it is required to cover at any time prior to the end expiration of its Effectiveness Period for more than an aggregate of 45 days (which need not be consecutive days) during any three-month period or for more than an aggregate of 90 days (which need not be consecutive days) during any 12-month period (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) the Effective Period, upon discovery thatdate on which such Event occurs, or upon for purposes of clause (ii) the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which the Ordinary Shares applicable period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law, on each monthly anniversary of each such Event Date (including American depositary shares representing if the Ordinary Sharesapplicable Event shall not have been cured by such date) are then listed; and
(ix) cooperate with each Holder and until the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the effectiveness date payable, the Company 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 Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementfirst Event Date.
(c) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a “Selling Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunderQuestionnaire”).
Appears in 1 contract
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), Devon shall prepare and file with (if not previously filed) within five (5) business days after the SEC a Registration Statement covering Closing Date, and use commercially reasonable efforts to cause to become effective as promptly as reasonably practicable after the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such filing thereof (it being agreed that the Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of an Automatic Shelf Registration Statement if Devon is a well-known seasoned issuer (as is then available to effect defined in Rule 405) at the most recent applicable eligibility determination date), a shelf registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC statement and prospectus supplement under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and or shall respond file an amendment or prospectus supplement to any comments received from the SEC within ten (10) Business Days, and (iian existing shelf registration statement) to keep such Registration Statement continuously effective under permit the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all resale of the Registrable Securities cannotfrom time to time, including as a result of the application of permitted by Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly Act (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”or any similar provision then in force), in either case covering under the maximum number of Registrable Securities permitted Act with respect to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written the method or oral guidance, comments, requirements or requests methods of disposition thereof (other than an Underwritten Offering) as may be reasonably requested by the SEC’s staff (“Commission Guidance”). In Selling Holders in writing prior to the event the Company amends filing of the Registration Statement or files a New prospectus supplement, as applicable (the “Registration Statement”). A Registration Statement filed pursuant to this Section 2.01 shall be on Form S-3 (or any successor form or other appropriate form under the Securities Act), or, if Devon is not then permitted to file a registration statement on Form S-3, a registration statement on Form S-1 (or any successor form or other appropriate form under the Securities Act); in each case, provided that such Registration Statement shall permit the resale of the Registrable Securities in accordance with the method or methods of disposition thereof (other than an Underwritten Offering) as may be reasonably requested by the case may beSelling Holders in writing prior to the filing of the Registration Statement. Devon will use its commercially reasonable efforts to cause the Registration Statement filed pursuant to this Section 2.01 to remain continuously effective, including by filing any supplements or amendments thereto, under clauses the Securities Act until the earlier of (i) the date as of which all such Registrable Securities are sold by the Holders or cease to be Registrable Securities or (ii) above, two years from the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or initial effective date of such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement or prospectus supplement, if later (the “Additional Registration StatementsEffectiveness Period”). For purposes of this Agreement, the filing deadline of a New The Registration Statement and an Additional Registration Statement when it becomes effective (including the documents incorporated therein by reference) shall be the tenth (10th) day after the date that the Company is allowed comply in all material respects as to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the form with all applicable requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementmisleading.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Devon Energy Corp/De)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such form purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is then available to effect a registration for resale the earlier of (i) two years after the Effective Date, (ii) at such time as all of the Registrable SecuritiesSecurities have been publicly sold by the Holders, or (iii) at such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the 30th calendar day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its best efforts (i) to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereof90th calendar day following the date on which the Company becomes aware that such Registration Statement is required under this Agreement (each such 90th calendar day, the “Effectiveness Date” for such Registration Statement), and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for an aggregate of more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under the Transaction Documents or under applicable law,: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the product of (1) the number of Shares then held by such Holder on such Event Date and (2) the greater of (x) the Per Share Purchase Price under the Purchase Agreement and (y) the closing sales price of the Common Stock on the Event Date; and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the product of (1) the number of Shares then held by such Holder on such anniversary and (2) the greater of (x) the Per Share Purchase Price under the Purchase Agreement and (y) the closing sales price of the Common Stock on such anniversary. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statement, cure of an Event.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) hereof to such Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Authentidate Holding Corp)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 SB-2 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable Securities). Securities on Form SB-2, in which case such registration shall be on another appropriate form and shall contain (except if otherwise directed by the Holders) the "Plan of Distribution" attached hereto as ANNEX A. The Company shall use its best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, but in any event prior to the Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which is two years after the date that such Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction volume restrictions pursuant to Rule 144 144(k) (the “Effective Period”"EFFECTIVENESS PERIOD"). Such The Company agrees that it will make such pre- and post-effective filings with the Commission as are necessary in order to convert the Registration Statement to a Registration Statement under Form S-3 promulgated under the Securities Act as soon as possible following the date, if any, on which the Company is eligible to utilize such form to register the resale of its securities.
(b) The initial Registration Statement to be filed hereunder shall include (but not be limited to) a number of shares of Common Stock equal to no less than the sum of (i) 200% of the number of shares of Common Stock issuable upon conversion in full of the principal amount of Debentures issued on such Closing Date, assuming no interest is paid thereon in cash and that such Debentures remain outstanding until September 15, 2002 and that such conversion occurred at a price equal to the Conversion Price (as defined in the Debentures) and (ii) the number of shares of Common Stock issuable upon exercise in full of the Warrants issued as of the Closing Date.
(c) If (a) a Registration Statement is not filed on or prior to its Filing Date (if the Company files such Registration Statement without affording the Holder the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not include any Ordinary Shares be deemed to have satisfied this clause (a)), or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs (b) the Company that all of fails to file with the Registrable Securities cannot, as Commission a result of the application of request for acceleration in accordance with Rule 415 461 promulgated under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number within five days of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement notified (orally or Additional Registration Statementin writing, as applicable, whichever is earlier) by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC that a Registration Statement with respect will not be "reviewed," or not subject to such Registrable Securities and use its best efforts to cause further review, or (c) a Registration Statement that registers filed hereunder is not declared effective by the Commission on or prior to its Effectiveness Date, or (d) after a Registration Statement is filed with and declared effective by the Commission, such Registration Statement ceases to be effective as to all Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements which it is required to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, relate at any time prior to the end expiration of the Effective Period, upon discovery thatEffectiveness Period without being succeeded within ten Business Days by an amendment to such Registration Statement or by a subsequent Registration Statement filed with and declared effective by the Commission, or upon (e) the happening of any event as a result of whichCommon Stock shall not be quoted on the OTC Bulletin Board ("OTC") or shall be delisted or suspended from trading on the New York Stock Exchange, American Stock Exchange, the Prospectus includes an untrue statement of Nasdaq National Market or the Nasdaq SmallCap Market (each, a material fact "SUBSEQUENT MARKET") for more than three Trading Days (which need not be consecutive Trading Days), or omits to state a material fact required to be stated therein or necessary to make (f) the statements therein not misleading in the light conversion rights of the circumstances then existingHolders pursuant to the Debentures are suspended for any reason, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or (g) an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required Statement is not filed by the Company’s agent Company with the Commission within ten Business Days of the Commission's notifying the Company that such amendment is required in order for such Registration Statement to be declared effective (any such failure or breach being referred to as an "EVENT," and for purposes of clauses (a), (c) and (f) the date on which maintains such Event occurs, or for purposes of clause (b) the register date on which such five day period is exceeded, or for purposes of members clauses (d) and (g) the date which such ten Business Day-period is exceeded, or for purposes of Ordinary Shares or clause (e) the Depositarydate on which such three Trading Day-period is exceeded, being referred to as "EVENT DATE"), then, on each such Event Date and every monthly anniversary thereof until the applicable Event is cured, the Company shall promptly pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2.0% of the purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriterdate payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall not be relieved apply on a pro-rata basis for any portion of any obligations it has hereundera month prior to the cure of an Event.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities covered by such Registration Statement may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effective each, an "Effectiveness Period”"). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by is not filed on or prior to the SEC and/or Filing Date; (ii) withdraw the Registration Statement and file a new is not declared effective by the Commission by the Effectiveness Date; (iii) after the Registration Statement is filed with and declared effective by the Commission, the Registration Statement ceases to be effective (a “New Registration Statement”), in either case covering the maximum number of by suspension or otherwise) as to all Registrable Securities permitted to be registered which it is required to relate at any time prior to the expiration of the Effectiveness Period (without being succeeded immediately by an additional registration statement filed and declared effective) for a period of time which shall exceed thirty (30) days in the SEC, on Form F-3 aggregate per year or such other form available to register for resale the Registrable Securities more than twenty (20) consecutive calendar days (defined as a secondary offeringperiod of 365 days commencing on the date the Registration Statement is declared effective); providedor (iv) the Common Stock is not listed or quoted, however, that prior to filing such amendment or New Registration Statement, is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall be obligated not have been able to use its best efforts to advocate with the SEC for the registration of all cure such trading suspension within thirty (30) days of the Registrable Securities in accordance with notice thereof or list the Common Stock on another Trading Market); (any publicly-available written such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish to each Holder a Prospectus the date which such thirty (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents 30) day or twenty (20) consecutive day period (as the Investor case may reasonably request in order to facilitate the disposition be) is exceeded, or for purposes of the Registrable Securities owned by it that are included in such registration;
clause (iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which such three (3) Trading Day period is exceeded, being referred to as "Event Date"), then until the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to one percent (1.0%) for each thirty (30) day period (prorated for partial periods) on a daily basis of the Registration Statement cause an opinion original principal amount of legal counsel as the Secured Convertible Term Note ; provided that, the maximum aggregate amount of liquidated damages that may be charged to the effectiveness Company pursuant to this Section 2(b) shall not exceed ten percent (10%) of the Registration Statement to initial Principal Amount of the Secured Convertible Term Note. While such Event continues, such liquidated damages shall be delivered to such agent or paid not less often than each thirty (30) days. Any unpaid liquidated damages as of the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale date when an Event has been cured by the Investor under Company shall be paid within three (3) days following the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in date on which such Event has been cured by the event any Holder is deemed an underwriterCompany. Within three business days of the Effectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
Appears in 1 contract
Sources: Registration Rights Agreement (American Mold Guard Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable Securities). Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) Registration Rights Agreement and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts (i) to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is five years after the date that the Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the 30th day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereof135th day following the date on which the Company becomes aware that such Registration Statement is required to be filed under this Agreement (each such 135th day, the "Effectiveness Date" for such Registration Statement), and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for an aggregate of more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "EVENT," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as "EVENT DATE"), then, in addition to any other rights available to the Holders under this Agreement or under applicable law, on each Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1% of the aggregate purchase price paid by such Holder pursuant to the Registration Rights Agreement Purchase Agreement; and (y) on the 60th day following each such Event Date and on each monthly anniversary following such 60th day (if the applicable Event shall not have been cured by each such date), the Company shall pay to the Holder an amount in cash, as liquidated damages and not as penalty, equal to 1% of the aggregate paid by such Holder pursuant to the Purchase Agreement until such time as the applicable Event has been cured; provided, that the parties agree that the total amount of liquidated damages that are payable by the Company for any single Event is limited with respect to each Holder to an amount equal to 6% (for each Event) of the purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time month prior to the end cure of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementEvent.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for not already covered by an offering existing and effective Registration Statement to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date for such Registration Statement, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date on which all securities under such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). It is agreed and understood that the Company shall, from time to time, be obligated to file one or more additional Registration Statements to cover any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement.
(b) Notwithstanding anything contained herein to the Companycontrary, in the event that the Commission limits the amount of Registrable Securities that may be included and sold by Holders in any Registration Statement, including the Initial Registration Statement, the Company may reduce the number of Registrable Securities included in such Registration Statement on behalf of the Holders in whole or in part (in case of an exclusion as to a portion of such Registrable Securities, such portion shall be allocated pro rata among all holders of securities covered by such Registration Statement, which may include Persons who are not Holders party to this Agreement or the Loan Agreement, in proportion to the respective numbers of securities to be registered by each such Person over the total amount of securities to be registered on such form Registration Statement) (the amount of Registration Statement as is then available to effect a registration for resale such excluded Registrable Securities, the “Reduction Securities”). In such event the Company shall give the Holders prompt written notice of the Registrable Securities)number of such Reduction Securities excluded. The Company shall use its reasonable best efforts at the first opportunity that is permitted by the Commission to register for resale the Reduction Securities. Such new Registration Statement shall be on Form S-3 (iexcept if the Company is not then eligible to register for resale the Reduction Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereofEffectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective entire Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The Company Upon the occurrence of a Triggering Event, ------------ Issuer shall, at the request of Grantee included in the Exercise Notice, as soon promptly as practicablepracticable prepare, but in no event later than March 31, 2016 (file and keep current a shelf registration state ment under the “Filing Deadline”), prepare Securities Act covering all Option Shares issued and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis issuable pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company Option and shall use its best reasonable efforts (i) to cause such Registration Statement registration statement to be declared become effective by and remain current in order to permit the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares sale or other securities for the account disposition of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all Option Shares issued upon exercise of the Registrable Securities cannot, as a result Option in accordance with any plan of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required disposition requested by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offeringGrantee; provided, however, that prior Issuer may postpone or suspend the filing or -------- ------- effectiveness of a registration statement relating to a registration request by Grantee under this Section 8 for a period of time (not in excess of 30 days) if such filing such amendment or New Registration Statementeffectiveness would require the disclosure of material information that Issuer has a bona fide business purpose for preserving as ---- ---- confidential or would cause Issuer, the Company shall at a time when Issuer is otherwise in compliance with all its obligations under this Section 8, to be obligated to use its best efforts to advocate with the SEC for the registration of all in violation of the Registrable Securities in accordance with any publicly-available written federal securities laws or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”)rules and regulations thereunder. In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company Issuer will use its best reasonable efforts to file cause such registration statement first to become effective and then to remain effective for 270 days or until such earlier date as all shares registered shall have been sold by Grantee. In connection with the SECany such registration, as promptly as allowed Issuer and Grantee shall provide each other with representations, warranties, indemnities, contribution and other agreements customarily given in connection with such registrations. If requested by the SEC or Commission GuidanceGrantee in connection with such registration, Issuer shall become a party to one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement underwriting agreement (the “Additional Registration Statements”). For purposes managing underwriter(s) thereunder being approved by Issuer, such approval not to be unreasonably withheld or delayed) relating to the sale of this Agreementsuch shares, but only to the filing deadline extent of a New Registration Statement obligating Issuer in respect of representations, warranties, indemnities, contribution and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file other agreements customarily made by issuers in such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidanceunderwriting agreements.
(b) Subject to In the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreementevent that Grantee so requests, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all closing of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such sale or other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement Option Shares or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs registration statement filed pursuant to Section 8(a) shall be free of all restrictive legends. In connection therewith, if required by occur substantially simultaneously with the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness exercise of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementOption.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The On or prior to the applicable Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities (other than in the case of the initial Registration Statement to be filed under this Section 2(a), the 2008 Make Good Shares, the 2009 Make Good Shares and any Settlement Shares) not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement required to be filed under this Agreement shall be filed on Form S-1 (or on such other form appropriate for such purpose) and contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s written consent) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause each Registration Statement required to be filed under this Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep each such Registration Statement continuously effective during its entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If for any reason other than due solely to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such .
(b) Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission in which the Company uses its reasonable best efforts and time to cause as many Registrable Securities (other than the 2008 Make Good Shares, 2009 Make Good Shares and any Settlement Shares, unless the 2008 Delivery Date or the 2009 Delivery Date, as the case may be, shall have occurred) for as many Holders as possible to be included in the Registration Statement shall be filed pursuant to Section 2(a) without characterizing any Holder as an underwriter (and in such regard uses its reasonable best efforts to cause the Commission to permit the affected Holders or their respective counsel to participate in Commission conversations on Form F-3 such issue together with Company U.S. Counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (or, if Form F-3 is not then available 3) Trading Days prior written notice to the Company, on such form of Holders (i) remove from the Registration Statement as is then available such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to effect a such restrictions and limitations on the registration for and resale of the Registrable Securities, in each case as the Commission may require in order for the Commission to allow such Registration Statement to become effective; provided, that in no event may the Company name any Holder as an underwriter without such Holder’s prior written consent (collectively, the “SEC Restrictions”). The Company Unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall use its best efforts be allocated first (i) among any securities of the Company to be included in such Registration Statement pursuant to Section 6(b) and second (ii) among the Registrable Securities of the Holders on a pro rata basis. No liquidated damages under Section 2(f) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled, until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all provisions of this Section 2 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) so that the Company will be required to file with and cause to be declared effective by the Commission such additional Registration Statements in the time frames set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities (if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall file a Registration Statement on Form S-3 covering all such Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after thereafter, but in any event prior to the filing thereof, and Effectiveness Date therefor. Such Registration Statement shall respond contain (except if otherwise required pursuant to any written comments received from the SEC within ten (10Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) Business Days, and (ii) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be obligated used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(d) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the 2008 Make Good Shares and the 2008 Settlement Shares, as applicable, on Form S-3 if the Company is then eligible to utilize such Form (or on such other form appropriate for such purpose) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to advocate keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the SEC Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(e) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the 2009 Make Good Shares and the 2009 Settlement Shares, as applicable, on Form S-3 if the Company is then eligible to utilize such Form (or on such other form appropriate for such purpose) and shall cause such Registration Statement to be filed by the registration Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of all such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(f) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date or if by the Business Day immediately following the Effective Date, the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with any publicly-available written the terms hereof (whether or oral guidancenot such a prospectus is technically required by such Rule), commentsor (iii) after its Effective Date, requirements without regard for the reason thereunder or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or files a New Registration Statement, breach being referred to as the case may be, under an "Event," and for purposes of clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish the date which such 30 Trading Day-period is exceeded, being referred to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇as "Event Date"), including a preliminary prospectus, then in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect addition to any comments by other rights the SEC with respect to Holders may have hereunder or under applicable law, on each such Registration Statement or Prospectus or any amendment or supplement thereto or any request by Event Date and on each monthly anniversary of each such Event Date (if the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered applicable Event shall not have been cured by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by date) until the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the Registration Statement cause an opinion of legal counsel as aggregate Investment Amount paid by such Holder pursuant to the effectiveness Purchase Agreement. The parties agree that in no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the Registration Statement aggregate Investment Amount of the Holders in any 30-day period and the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be delivered to such agent or ten percent (10%) of the Depositary, together with any other authorizations, certificates and directions requested aggregate Investment Amount paid by such agent or Holder pursuant to the DepositaryPurchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event (except in the case of the first Event Date), which authorize and direct such agent or shall cease to accrue (unless earlier cured) upon the Depositary to issue such Registrable Securities without legend upon sale by expiration of the Investor under the Registration StatementEffectiveness Period.
(cg) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a “Selling Holder is deemed an underwriter, the Questionnaire”). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(f) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least five Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Genesis Pharmaceuticals Enterprises, Inc.)
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and file with the SEC a Registration Statement covering the resale of If Lender shall exercise its right to sell all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale or any part of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by Pledged Collateral following an Event of Default which is continuing and the SEC under acceleration of the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after payment of the filing thereofObligations, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”)if, in either case covering the maximum number opinion of Registrable Securities permitted to be registered by the SECcounsel for Lender, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company it is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep have the Registration Statement effective for the Effective Period and to comply with Pledged Collateral being sold registered under the provisions of the Securities Act of 1933, as amended (the “Securities Act”), Pledgor will use commercially reasonable efforts to cause the applicable Issuer to execute and deliver, and to cause the Exchange Act with respect directors and officers of such Issuer to the disposition of execute and deliver, all securities covered by at Pledgor’s expense, all such Registration Statement;
(iii) furnish instruments and documents and to each Holder a Prospectus (which requirement do or cause to be done all such other acts and things as may be fulfilled by necessary to register the Pledged Collateral being sold under the provisions of the Securities Act. Pledgor will use commercially reasonable efforts to cause any such registration statement to become effective and to remain effective for a period of one year from the date of the first public filing offering of such Prospectus on ▇▇▇▇▇the Pledged Collateral being sold and to make all amendments thereto and to related documents which, including a preliminary prospectusin the opinion of Lender or its counsel, are necessary or advisable in their reasonable discretion, all in conformity with the requirements of the Securities Act, Act and such other documents as the Investor may reasonably request in order to facilitate the disposition rules and regulations of the Registrable Securities owned by it that are included and Exchange Commission applicable thereto. Pledgor shall also use commercially reasonable efforts to cause the applicable Issuer to comply with the provisions of the “Blue Sky” law of any jurisdiction which Lender shall designate in connection with any sale hereunder; and will use commercially reasonable efforts to cause the applicable Issuer to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months but not more than eighteen months, beginning with the first month after the effective date of any such registration;
(iv) notify each Holder and its counsel in writing (iregistration statement, which earnings statement will satisfy the provisions of Section 11(a) of the receipt by the Company Securities Act. Pledgor acknowledges that a breach of any notification with respect of the covenants contained in this Section may cause irreparable injury to any comments by the SEC Lender, that Lender will have no adequate remedy at law with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect theretobreach and, (ii) as a consequence, such covenants of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as Pledgor shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementspecifically enforceable against Pledgor.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 or if eligible, Form S-3 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 or if eligible, Form S-3 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as ANNEX A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as ANNEX A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Company agrees to promptly Securities Act during the entire Effectiveness Period.
(d) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement, except in the case of an amendment that does not concern a Holder, without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 15 calendar days (which need not be consecutive) in accordance with any publicly12-available written month period (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "EVENT," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 15 calendar day-period is exceeded, being referred to as "EVENT DATE"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5 % of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and month prior to the cure of an Additional Registration Statement shall be Event, except in the tenth (10th) day after case of the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidancefirst Event Date.
(be) Subject Each Holder agrees to furnish to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading completed Questionnaire in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish form attached to each Holder this Agreement as ANNEX B (a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends"SELLING HOLDER QUESTIONNAIRE"). In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Genius Products Inc)
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and will file or cause to be filed with the SEC Securities and Exchange Commission on or prior to the date that is ninety (90) days after the date hereof a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be registration statement on Form F-3 S-3 (oror Form S-1, if a Form F-3 S-3 shelf registration is not then available unavailable to the Company, on such form of ) (the "Registration Statement as is then available Statement") to effect a registration for resale cover re-sales of the Registrable Securities). The Company shall use its reasonable best efforts to (ix) to cause such Registration Statement to be declared effective by the SEC under the Securities Act as soon as practicable thereafter, (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (iiy) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16effective, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder supplemented and use its best efforts to file amendments amended to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be extent necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included for a period ending one year following the date hereof, and (z) to cause such Registrable Securities to be qualified in such registration;
jurisdictions as the Holder may reasonably request. Notwithstanding anything herein to the contrary, in the event of a material development or transaction, or the occurrence of a material event, affecting the Company that has not yet been publicly disclosed, if the Board of Directors of the Company shall determine in good faith that it would not be in the best interest of the Company to make such disclosure at such time, the Company may so notify the Holder of Registrable Securities (ivsuch notice being referred to herein as a "Deferral Notice") and shall thereafter be entitled to defer preparing and furnishing such supplement or amendment until such time as the Company determines such disclosure should be made, at which time it shall so notify each such Holder and its counsel shall prepare and furnish to such Holder any such supplement or amendment as may then be required. Following receipt of any supplement or amendment to any prospectus, the Holder of Registrable Securities shall deliver such amended, supplemental or revised prospectus in writing (i) connection with any offers or sales of Registrable Securities, and shall not deliver or use any prospectus not so amended, supplemented or revised. Following receipt of a Deferral Notice, the receipt by Holder of Registrable Securities shall not make any further sales of Registrable Securities pursuant to the Registration Statement until such Holder receives such notice, and any such amendment or supplement, from the Company, or until such Holder receives notice from the Company of any notification with respect to any comments by the SEC with respect to that no such Registration Statement or Prospectus or any amendment or supplement thereto or any request is required. Notwithstanding the foregoing, the Company may not suspend use by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) Holder of Registrable Securities of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification sales of such Registrable Securities for sale a period exceeding thirty (30) days in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementconsecutive twelve-month period.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Warrant Agreement (Adaptec Inc)
Registration. (a) The On or prior to the Filing Date the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a "shelf" Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 SB-2 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable SecuritiesSecurities on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and those securities on Schedule 7(c) hereto, (ii) use its best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filingincluding filing with the Commission a request for acceleration of effectiveness in accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or not be subject to further review) as promptly soon as possible after the filing thereof, and shall respond but in any event prior to any comments received from the SEC within ten (10) Business DaysEffectiveness Date, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 144(k) as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the “Effective "Effectiveness Period”"). Such If an additional Registration Statement shall not include is required, for any Ordinary reason, to be filed because the actual number of shares of Warrant Shares or other securities for exceeds the account number of any other holder without the prior written consent shares of Investor. Notwithstanding the registration obligations set forth Common Stock initially registered in this Section 8.16, if the SEC informs the Company that all respect of the Registrable Securities cannot, as a result of Warrant Shares based upon the application of Rule 415 under computation on the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementClosing Date, the Company shall be obligated have twenty (20) Business Days to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New file such additional Registration Statement, as the case may be, under clauses (i) or (ii) above, and the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale declared effective by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriterCommission as soon as possible, but in the no event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunderlater than thirty (30) days after filing.
Appears in 1 contract
Sources: Registration Rights Agreement (Virtual Communities Inc/De/)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable Securities). Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts (i) to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the expiration of the Effectiveness Period.
(b) If for any reason the Commission does not permit all of the Shares and Additional Investment Right Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the 30th day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereofEffectiveness Date for such Registration Statement, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a filed Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for an aggregate of more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, but subject to the buy-back option specified below in this Section, at the option of each Holder, commencing on the date after the Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to .0003333 of the Investment Amount paid by such Investor under the Purchase Agreement for each day up through the second monthly anniversary of such Event Date and then .0006666 of the Investment Amount paid by such Investor under the Purchase Agreement for each day thereafter until the applicable Event is cured. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register for resale those Registrable Securities that were not registered for resale on be paid by applicable law) to the Registration StatementHolder, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after accruing daily from the date that such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. If there shall occur an Event by reason of Section 2(c)(ii) or 2(c)(iii) above and a Holder shall in a written notice to the Company is allowed to file demand payment of the liquidated damages resulting therefrom, then, in lieu of paying such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities liquidated damages under this AgreementSection, the Company shallshall have the option to require the demanding Holder to sell to the Company all, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until but not less than all of the Registrable Securities have been disposed of;
Shares and Additional Investment Rights then held by such Holder at a price equal to (ii1) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition Shares, the product of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled the number of Shares at issue multiplied by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with VWAP for the requirements of 15 Trading Days immediately preceding the Securities ActScheduled Buy-Back Date (as defined below), and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv2) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance Additional Investment Rights at issue, the Black Scholes value of such Additional Investment Rights (in accordance with variable values agreed to by the SEC Holder and the Company). The Company may exercise the buy back option set forth in the immediately preceding sentence by delivery of any stop order suspending an irrevocable notice to the effectiveness demanding Holder not more than two Trading Days following the delivery of such Registration Statement or Prospectus or any amendment or supplement thereto or Holder’s liquidated damage notice. The aggregate buy-back price for such Shares and Additional Investment Rights must be paid on the initiation or threatening of any proceeding for that purpose, (iii) 20th Trading Day following delivery of the receipt by notice (the “Scheduled Buy-Back Date”), or at the option of the Holder the notice shall be null and void, the liquidated damages will be reinstated with accrued interest and the Company of any notification with respect shall forfeit its right to deliver future such notices. Notwithstanding anything to the suspension of contrary set forth herein, the qualification of such Registrable Securities for sale in any jurisdiction or Holder shall have the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, right at any time prior to the end Scheduled Buy-Back Date to rescind the demand for payment of the Effective Period, upon discovery that, or upon liquidated damages under Section 2(c)(ii) giving rise to the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light buy-back notice of the circumstances then existingCompany, and promptly prepare, file with in which case the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may liquidated damages under Section 2(c)(ii) will be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder deemed waived and the Depositary Company will not have the right to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to deliver a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewithbuy-back notice or, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositarypreviously delivered, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to such notice will be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementvoid ab initio.
(cd) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a “Selling Holder is deemed an underwriter, the Questionnaire”). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) hereof to such Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (East West Bancorp Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earliest of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period"). By 5:00 p.m. (New York City time) on the Trading Day following the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Trading Day following the Effective Date of such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or oral guidance, comments, requirements not such filing is technically required under such Rule).
(c) If: (i) a Registration Statement is not filed on or requests of the SEC’s staff prior to its Filing Date (“Commission Guidance”). In the event if the Company amends files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with Section 2(a) or files a New Registration Statement2(b) herein, as the case may bebe (whether or not such a prospectus is technically required by such Rule), under or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law or in equity, on such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that (1) the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register not be liable for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities liquidated damages under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification Agreement with respect to any comments by Warrants or Warrant Shares and (2) in no event will the SEC with respect Company be liable for liquidated damages under this Agreement in excess of 2.0% of the aggregate Investment Amount of the Holders in any single month, and (3) the maximum aggregate liquidated damages payable to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, a Holder under this Agreement shall be ten percent (ii10%) of the receipt aggregate Investment Amount paid by the Company of any notification with respect such Holder pursuant to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect Purchase Agreement. The partial liquidated damages pursuant to the suspension terms hereof shall apply on a daily pro-rata basis for any portion of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time a month prior to the end cure of an Event, except in the case of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementfirst Event Date.
(cd) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a “Selling Holder is deemed an underwriter, the Questionnaire”). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement until such Holder has provided the Company with a fully completed Selling Holder Questionnaire and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Sona Mobile Holdings Corp)
Registration. Holders shall be able to exercise their Warrants only if a registration statement relating to the Warrant Shares is then in effect, or the exercise of such Warrants is exempt from the registration requirements of the Securities Act, and such securities are qualified for sale or exempt from qualification under the applicable securities laws of the states in which the various holders of the Warrants or other persons to whom it is proposed that the Warrant Shares be issued on exercise of the Warrants reside.
(a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file cause to be filed within 30 days of the issuance date of the Warrants with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis Commission pursuant to Rule 415. Such 415 under the Securities Act a shelf registration statement (the "Registration Statement shall be Statement") on Form F-3 (or, if Form F-3 is not then available the appropriate form relating to the Company, on such form of Registration Statement as is then available to effect a registration for resale offer and sale by the Company of the Registrable Securities). Warrant Shares to the holders of Warrants upon exercise of the Warrants.
(b) The Company shall use its reasonable best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received Commission on or before 90 days from the SEC within ten date of issuance of the Warrants.
(10c) Business Days, and (ii) The Company shall use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act in order to permit the prospectus included therein to be lawfully delivered by the Company to the holders exercising the Warrants until such the later of (i) two years following the effective date as is of the Registration Statement and (ii) the earlier of (xA) the Expiration Date and (B) the first date on as of which all Registrable Securities covered by such Registration Statement Warrants have been sold or exercised; provided that, except as provided below with respect to any Black Out Period (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”as defined herein). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated deemed not to use have used its reasonable best efforts to advocate with keep the SEC for Registration Statements effective during the registration of all requisite period if it voluntarily takes any action that would result in it not being able to offer and sell the Warrant Shares upon exercise of the Registrable Securities in accordance with any publicly-available written or oral guidanceWarrants during that period, comments, requirements or requests of unless such action is required by applicable law. Notwithstanding the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) aboveforegoing, the Company will use its best efforts shall not be required to file with the SEC, as promptly as allowed by the SEC amend or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on supplement the Registration Statement, any related prospectus or any document incorporated therein by reference, for a period (a "Black Out Period") not to exceed, for so long as amendedthis Agreement is in effect, or an aggregate of 60 days in any calendar year, in the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date event that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare an event occurs and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event is continuing as a result of whichwhich the Registration Statements, any related prospectus or any document incorporated therein by reference as then amended or supplemented would, in the Prospectus includes Company's good faith judgment, contain an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading therein, in the light of the circumstances then existingunder which they were made, not misleading, and promptly prepare(ii)(A) the Company determines in its good faith judgment that the disclosure of such event at such time would have a material adverse effect on the business, file operations or prospects of the Company or (B) the disclosure otherwise relates to a material business transaction which has not yet been publicly disclosed; provided, further, that such Black Out Period shall be extended for any period, not to exceed an aggregate of 30 days in any calendar year, during which the Commission is reviewing any proposed amendment or supplement to the Registration Statement, any related prospectus or any document incorporated therein by reference which has been filed by the Company; and provided, further, that no Black Out Period may be in effect during the three months prior to the Expiration Date.
(d) The Company shall cause the Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Registration Statement, amendment or supplement, (i) to comply in all material respects with the SEC applicable requirements of the Securities Act and furnish the rules and regulations of the Commission and (ii) not to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Company shall give prompt written notice to the holders of the Warrants, the Initial Purchaser and the Warrant Agent of (i) the effectiveness of the Registration Statement or any post-effective amendment thereto, (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statements or the initiation or threatening of any proceedings for that purpose, (iii) the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Warrant Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (iv) the happening of any event that requires the Company to make changes in the Registration Statements or the prospectus in order to make the statements therein not misleading in and (v) the light commencement and termination of the circumstances then existing;any Black Out Period.
(viiif) The Company shall use its reasonable best efforts to list such Registrable Securities on each securities exchange on which prevent the Ordinary Shares (including American depositary shares representing issuance or obtain the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery withdrawal of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after any order suspending the effectiveness of the Registration Statement cause an opinion Statements at the earliest possible time.
(g) Upon the occurrence of legal counsel as any event contemplated by Section 17(e)(iv) or (v) hereof (subject to the effectiveness last sentence of Section 17(c) hereof) the Company shall promptly prepare a post-effective amendment to the Registration Statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to holders of the Warrants, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and will contain the current information required by the Securities Act.
(h) Not later than the effective date of the Registration Statement Statements, the Company will provide a CUSIP number for the Warrant Shares and provide the Warrant Agent with printed certificates for the Warrant Shares in a form eligible for deposit with the Depository Trust Company.
(i) The Company will comply with all rules and regulations of the Commission to be delivered the extent and so long as they are applicable to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(cj) The Company understands shall register or qualify or cooperate with the holders in connection with the registration or qualification of the Warrant Shares for offer and sale by the Company upon exercise of the Warrants under the securities or blue sky laws of such states of the United States as any holder reasonably requests and do any and all other acts or things necessary or advisable to enable such offer and sale in such jurisdictions; provided that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to (i) qualify to do business in any jurisdiction in which it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction in which it is not then so subject.
(k) The Company shall bear all expenses incurred by it in connection with the performance of its obligations under this Section 17.
(l) The Company acknowledges and agrees that any remedy at law for breach of any provision of this Section 17 will be inadequate and that, in addition to any other remedies that the holder may have, the holders shall be entitled to the remedy of specific performance to ensure the Company performs its obligations it has hereunderunder this Section 17. The election of any one or more remedies by the holders hereunder shall not constitute a waiver of the right to pursue other available remedies.
(m) No person is entitled to include any securities of the Company held by such person in, or to have such securities registered under, the Registration Statement.
Appears in 1 contract
Registration. (a) Effectiveness Deadline. Following the date hereof, but no later than 60 days following the Closing Date, HEP shall prepare and file a registration statement under the Securities Act to permit the public resale of Registrable Securities then outstanding from time to time as permitted by Rule 415 (or any similar provision then in effect) of the Securities Act with respect to all of the Registrable Securities (the “Registration Statement”). The Company shall, Registration Statement filed pursuant to this Section 2.01(a) shall be on such appropriate registration form or forms of the Commission as shall be selected by HEP so long as it permits the continuous offering of the Registrable Securities pursuant to Rule 415 (or any similar provision then in effect) under the Securities Act at then-prevailing market prices. HEP shall use its commercially reasonable efforts to cause the Registration Statement to become effective on or as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and file with the SEC a practicable after filing. Any Registration Statement covering shall provide for the resale pursuant to any method or combination of methods legally available to, and reasonably requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. HEP shall use its commercially reasonable efforts to cause the Registration Statement filed pursuant to this Section 2.01(a) to be effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act Holders until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the ceased to be Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Effectiveness Period”). Such The Registration Statement shall not include any Ordinary Shares or other securities for when effective (including the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth documents incorporated therein by reference) will comply as to form in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate material respects with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, applicable requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become will not contain an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Registration Statement or documents incorporated therein by reference, in the light of the circumstances then existing;
under which a statement is made). As soon as practicable following the date that the Registration Statement becomes effective, but in any event within two (viii2) use its best efforts to list Business Days of such Registrable Securities on each securities exchange on which date, HEP shall provide the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate Holders with each Holder and the Depositary to facilitate the timely delivery written notice of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Common Unit Purchase Agreement (Holly Energy Partners Lp)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause the Registration Statement to be declared effective under the Securities Act as is then available to effect a registration for resale of soon as possible but, in any event, no later than the Registrable Securities). The Company Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) at such time as all of the Registrable Securities have been publicly sold by the Holders, or (ii) at such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) as determined by the Company and evidenced by a written opinion of its counsel to that effect delivered to each of the Holders who then hold Registrable Securities that have not been publicly sold, which opinion shall not be unreasonably withheld or delayed (the "Effectiveness Period"). Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than ten days after such date, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Shelf Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(b) If for any reason the Commission does not permit all of the Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the 30th day following such date (or if such day is not a Business Day, the next Business Day), an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as "Event Date"), then, in addition to any other rights available to the Holders under the Transaction Documents or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as fees and not as a penalty, equal to 1% of the aggregate Investment Amount of such Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as fees and not as a penalty, equal to 2% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; provided, that the fees payable under this section shall be capped for any Investor at 15% of such Investor's Investment Amount (which cap shall not affect such Investor's right to seek other available remedies). If the Company fails to pay any fees pursuant to this Section in full within ten days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such fees are due until such amounts, plus all such interest thereon, are paid in full. The fees pursuant to the terms hereof shall apply on a pro rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time month prior to the end cure of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementEvent.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The In case the Company shall receive a Demand Notice, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (on or prior to the “Filing Deadline”), prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form S-3 or F-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable SecuritiesSecurities on Form S-3 or F-3, in which case such registration shall be on another appropriate form in accordance herewith). The Company shall use its best commercially reasonable efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from but in no event later than the SEC within ten (10) Business DaysEffectiveness Deadline, and (ii) to keep such remain effective continuously throughout the Effectiveness Period. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement continuously effective under within one (1) business day of the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of InvestorDate. Notwithstanding the registration obligations set forth in this Section 8.16Article 2, if in the SEC event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and of the Holders thereof, (ii) use its best commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC Commission and/or (iiiii) withdraw the Registration Statement and file a new Registration Statement registration statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SECCommission, on Form S-3 or F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best commercially reasonable efforts to advocate with the SEC Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission SEC Guidance”). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (iii) or (iiiii) above, the Company will use its best commercially reasonable efforts to file with the SECCommission, as promptly as allowed by Commission or SEC Guidance provided to the SEC Company or Commission Guidanceto registrants of securities in general, one or more Registration Statements registration statements on Form S-3 or F-3 or such other forms form available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Remainder Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Lone Oak Acquisition Corp)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its reasonable best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) the date as of which the Holders may sell all of the Registrable Securities covered by such Registration Statement pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company's transfer agent and the affected Holders or (ii) the date on which the Holders shall have sold all of the Registrable Securities covered by such Registration Statement (the "Effectiveness Period"). By 5:00 p.m. (New York City time) on the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written or oral guidance, comments, requirements or requests of Rule 424 under the SEC’s staff (“Commission Guidance”). In Securities Act the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts final prospectus to file be used in connection with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements sales pursuant to such Registration Statement and the Prospectus used in connection with (whether or not such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement is technically required under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementRule).
(c) The Promptly following any date on which the Company understands that each Holder disclaims being an underwriter, but in becomes eligible to use a registration statement on Form S-3 to register the event any Holder is deemed an underwriterRegistrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least five Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)). The Holder shall supplement such Selling Holder Questionnaire if the information contained therein shall become incorrect at any obligations it has hereundertime.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC upon a review of such Registration Statement) the “Plan of Distribution” in the form attached hereto as Annex A. The Company shall cause the Registration Statement to be on Form F-3 (ordeclared effective under the Securities Act as soon as possible but, if Form F-3 in any event, no later than its Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the fifth year after the date that the Registration Statement is not then available declared effective by the SEC or such earlier date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company, on such form of Registration Statement as is then available to effect a registration ’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for resale any reason the SEC does not permit all of the Registrable Securities)Securities to be included in a Registration Statement filed pursuant to Section 2.2(a) or for any other reason all Registrable Securities then outstanding are not then included in such an effective Registration Statement, then the Company shall prepare and file as soon as reasonably possible after the date on which the SEC shall indicate as being the first date or time that such filing may be made, but in any event by the Filing Date therefore, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its best efforts (i) to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as during the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the earlier of Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same, the Company shall not be deemed to have satisfied this clause (xi)), or (ii) a Registration Statement is not declared effective by the SEC on or prior to its required Effectiveness Date, or (iii) after the date on which all Registrable Securities covered by that such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered is declared effective by the SEC, on Form F-3 without regard for the reason thereunder or efforts therefore, such other form Registration Statement ceases for any reason to be effective and available to register for resale the Holders as to all Registrable Securities as a secondary offering; provided, however, that it is required to cover at any time prior to filing the expiration of its Effectiveness Period for more than an aggregate of 20 trading days (which need not be consecutive) during any 18-month period (the parties understand that any unused days in a particular period may not be carried forward to any subsequent period) (any such amendment failure or New Registration Statement, the Company shall be obligated breach being referred to use its best efforts to advocate with the SEC as an “Event,” and for the registration purposes of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 trading day-period is exceeded, being referred to as an “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Purchase Price paid by such Holder for Shares pursuant to the Securities Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Purchase Price paid by such Holder for Shares pursuant to the Securities Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time month prior to the end cure of an Event, except in the case of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementfirst Event Date.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 SB-2 (orexcept if the Company is eligible to register for resale the Registrable Securities on Form S-3 in the future, if Form F-3 is not then available the Company shall file a post effective amendment to the Company, registration statement on such form of Registration Statement as is then available to effect a registration for resale of Form S-3 covering the Registrable Securities). The Company Securities and shall use its best commercially reasonable efforts (i) to cause such Registration Statement to be declared effective as promptly as practicable thereafter).
(b) The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective by the SEC Commission as soon as practicable (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (unless it becomes effective automatically upon filing5) as promptly as possible Business Days after the filing thereofdate that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or not be subject to further review and the effectiveness of the Registration Statement may be accelerated) and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such the Registration Statement continuously effective under the Securities Act until such date as is the earlier of of: (xi) the date on which that all Registrable Securities covered by such the Registration Statement have been sold or may be sold by non-affiliates without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders and (yii) the date on which is the second anniversary of the date in which the Registrable Securities may be sold without any restriction pursuant to Rule 144 Registration Statement was declared effective by the Commission (the “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16also cover, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, extent allowable under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the disposition of all securities covered by such Registrable Securities. It is agreed and understood that the Company shall, from time to time, be obligated to file an additional Registration Statement;
(iii) furnish Statement to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the cover any Registrable Securities owned by it that which are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC not registered for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee resale pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the pre-existing Registration Statement.
(c) The If: (i) the Registration Statement is not filed on or prior to the Filing Date (if the Company understands that each Holder disclaims being an underwriter, but in files a Registration Statement without affording the event any Holder is deemed an underwriterHolders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be relieved deemed to have satisfied this clause (i)), (ii) after its Effective Date such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than 20 consecutive Trading Days or an aggregate of 50 Trading Days (which need not be consecutive)(any such failure or breach being referred to as an “Event,” and for purposes of clause (i) the date on which such Event occurs, or for purposes of clause (ii) the date which such 20 consecutive or 50 Trading Day period (as applicable) is exceeded, being referred to as “Event Date”), then in addition to any other rights available to the Holders: (x) on such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to .5% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement (which remedy shall not be exclusive of any obligations it has hereunderother remedies available under this Agreement); and (y) on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to .5% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section 2(c) in respect of any consideration paid by the Investors upon exercise of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within ten days after the date payable, 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 Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. Notwithstanding the foregoing, the maximum amount of payment to a Holder associated with any and all Events shall not exceed 10% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement.
(d) Each Holder shall furnish to the Company a completed Questionnaire in the form as provided by the Company (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Lifesciences Opportunities Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best reasonable commercial efforts (i) to cause such the each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities covered by such Registration Statement may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the each, an “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly .
(b) If: (i) inform each Holder and use its best efforts to file amendments any Registration Statement is not filed on or prior to the applicable Filing Date for such Registration Statement as required by the SEC and/or Statement; (ii) withdraw the a Registration Statement filed hereunder is not declared effective by the Commission by the date required hereby with respect to such Registration Statement; (iii) after a Registration Statement is filed with and file a new declared effective by the Commission, such Registration Statement ceases to be effective (by suspension or otherwise) as to all Registrable Securities to which it is required to relate at any time prior to the expiration of the Effectiveness Period applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective) for a “New Registration Statement”), period of time which shall exceed 45 days in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 aggregate per year or such other form available to register for resale the Registrable Securities more than 30 consecutive calendar days (defined as a secondary offeringperiod of 365 days commencing on the date such Registration Statement is declared effective); providedor (iv) the Common Stock is not listed or quoted, however, that prior to filing such amendment or New Registration Statement, is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall be obligated not have been able to use its best efforts to advocate with the SEC for the registration of all cure such trading suspension within 30 days of the Registrable Securities in accordance with notice thereof or list the Common Stock on another Trading Market); (any publicly-available written such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish to each Holder a Prospectus the date which such 45 day or 30 consecutive day period (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor case may reasonably request in order to facilitate the disposition be) is exceeded, or for purposes of the Registrable Securities owned by it that are included in such registration;
clause (iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which such three (3) Trading Day period is exceeded, being referred to as “Event Date”), then until the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2.0% for each thirty (30) day period (prorated for partial periods) on a daily basis of the Registration Statement cause an opinion original principal amount of legal counsel each applicable Note. While such Event continues, such liquidated damages shall be paid not less often than each thirty (30) days. Any unpaid liquidated damages as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale date when an Event has been cured by the Investor under Company shall be paid within three (3) days following the Registration Statementdate on which such Event has been cured by the Company.
(c) The Company understands that each Holder disclaims being an underwriter, but in Within three business days of the event any Holder is deemed an underwriterEffectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
Appears in 1 contract
Sources: Registration Rights Agreement (Maxim Mortgage Corp/)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form [SB-2] (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to any comments received from keep the SEC within ten Registration Statement continuously effective under the Securities Act until the date which is the earlier of (10i) Business Daysfive years after its Effective Date, and (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) (the "Effectiveness Period"). Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale (but in no event more than thirty days after such date), the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement). The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible thereafter and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xb) If for any reason the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall Commission does not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that permit all of the Registrable Securities cannotto be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form [SB-2] (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as a result of the application of Rule 415 Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Company agrees to promptly Securities Act during the entire Effectiveness Period.
(c) If: (i) inform each Holder a Registration Statement is not filed on or prior to the Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and use its best efforts to file amendments to comment on the same as required by Section 3(a) hereof, the Registration Statement as required by shall be deemed not filed within the SEC and/or meaning of this clause (i)); or (ii) withdraw the a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date; or (iii) after its Effective Date and file a new during the Effectiveness Period, without regard for the reason thereunder or efforts therefor, such Registration Statement (a “New Registration Statement”), in either case covering ceases for any reason to be effective and available to the maximum number of Holders as to all Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available which it is required to register for resale the Registrable Securities as a secondary offering; provided, however, that cover at any time prior to filing the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such amendment failure or New Registration Statement, the Company shall be obligated breach being referred to use its best efforts to advocate with the SEC as an "Event," and for the registration purposes of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish the date which such 30 Trading Day-period is exceeded, being referred to as "Event Date"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇penalty, including a preliminary prospectus, in conformity with the requirements equal to 2% of the Securities Act, and aggregate Investment Amount paid by such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect Shares pursuant to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, Purchase Agreement; and (ivy) on each monthly anniversary of each such Event Date (if the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered applicable Event shall not have been cured by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by date) until the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2% of the Registration Statement cause an opinion of legal counsel as aggregate Investment Amount paid by such Holder for Shares pursuant to the effectiveness of the Registration Statement to be delivered to such agent or the DepositaryPurchase Agreement, together with any other authorizationsprovided, certificates and directions requested by such agent or the Depositaryhowever, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to pay more than an aggregate of 18% of the Investment Amount in liquidated damages. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any obligations it has hereunderpartial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a simple annual rate of 10% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Sys)
Registration. (a) The On or prior to the applicable Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities (other than the Make Good Escrow Shares and Listing Shares, which shares shall be included and covered by such Registration Statement if the applicable Delivery Date for such shares shall have occurred) not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement required to be filed under this Agreement shall be filed on Form S-1 (Form S-3 if the Company is then eligible to utilize such Form or on such other form appropriate for such purpose) and contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s written consent) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause each Registration Statement required to be filed under this Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep each such Registration Statement continuously effective during its entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If for any reason other than due to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such .
(b) Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission in which the Company uses its reasonable best efforts and time to cause as many Registrable Securities (other than the Make Good Escrow Shares and Listing Shares unless the applicable Delivery Date for such shares shall have occurred) for as many Holders as possible to be included in the Registration Statement shall be filed pursuant to Section 2(a) without characterizing any Holder as an underwriter (and in such regard uses its reasonable best efforts to cause the Commission to permit the affected Holders or their respective counsel to participate in Commission conversations on Form F-3 such issue together with Company Counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (or, if Form F-3 is not then available 3) Trading Days prior written notice to the Company, on such form of Holders (i) remove from the Registration Statement as is then available such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to effect a such restrictions and limitations on the registration for and resale of the Registrable Securities, in each case as the Commission may require in order for the Commission to allow such Registration Statement to become effective; provided, that in no event may the Company name any Holder as an underwriter without such Holder’s prior written consent (collectively, the “SEC Restrictions”) and provided, further, that before a cut back of any Registrable Securities, the Company shall cut back all Make Good Escrow Shares and Listing Shares. In furtherance of the foregoing, unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated among the Registrable Securities of the Holders on a pro rata basis. No liquidated damages under Section 2(f) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled, until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). The From and after the Restriction Termination Date, all provisions of this Section 2 (including, without limitation, the liquidated damages provisions, subject to tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) so that the Company will be required to file with and cause to be declared effective by the Commission such additional Registration Statements in the time frames set forth herein as necessary to ultimately cause to be covered by effective Registration Statements all Registrable Securities (if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall use its best efforts file a Registration Statement on Form S-3 covering all such Registrable Securities (ior a post-effective amendment on Form S-3 to the then effective Registration Statement) to and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after thereafter, but in any event prior to the filing thereof, and Effectiveness Date therefor. Such Registration Statement shall respond contain (except if otherwise required pursuant to any written comments received from the SEC within ten (10Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) Business Days, and (ii) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written or oral guidance, comments, requirements or requests of Rule 424 under the SEC’s staff (“Commission Guidance”). In Securities Act the event the Company amends the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or files a New Registration Statement, as not such filing is technically required under such Rule).
(d) On or prior to the case may be, under clauses (i) or (ii) aboveFiling Date, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC Commission a Registration Statement with respect covering the resale of the Make Good Escrow Shares and the Listing Shares on Form S-3 if the Company is then eligible to utilize such Registrable Form (or on such other form appropriate for such purpose) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities and Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement continuously effective until all under the Securities Act during the entire Effectiveness Period which is applicable to it. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Registrable Securities have been disposed of;
(ii) prepare and Company shall file with the SEC such amendments and supplements Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement and the Prospectus used in connection with (whether or not such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement is technically required under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementRule).
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (China New Energy Group CO)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith). The Company shall (i) with respect to the Company, on such form of Registration Statement required to be filed in connection with the Note, the Minimum Borrowing Note, and the Warrants, use its best efforts to cause such Registration Statement to become A&R Registration Rights Agreement 3 effective as is then available provided herein; provided that, such Registration Statement shall be required to effect a registration for resale remain effective as provided herein notwithstanding the use of best efforts by the Registrable Securities)Company and (ii) in respect of each other Registration Statement, cause each such Registration Statement to become effective and remain effective as provided herein notwithstanding the use of best efforts by the Company. The Company shall use its best reasonable commercial efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities covered by such Registration Statement may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the each, an “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all Within three business days of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the DepositaryEffectiveness Date, the Company shall promptly after cause its counsel to issue a blanket opinion in the effectiveness form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be reissued free of restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has complied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the Registration Statement cause an blanket opinion of legal counsel as to the effectiveness of the Registration Statement to required by this Section 2(b) shall be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or Purchaser within the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementtime frame set forth above.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Accentia Biopharmaceuticals Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement required hereunder shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). Each Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as is then available Annex A. The Company shall cause such Registration Statement to effect a registration for resale of the Registrable Securities)become effective and remain effective as provided herein. The Company shall use its best efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, but in any event prior to its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such each Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which is two years after the date that such Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction volume restrictions pursuant to Rule 144 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effective Effectiveness Period”). Such .
(b) If: (a) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holder the opportunity to review and comment on the same as required by Section 3(a), the Company shall not include any Ordinary Shares be deemed to have satisfied this clause (a)), or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs (b) the Company that all of fails to file with the Registrable Securities cannot, as Commission a result of the application of request for acceleration in accordance with Rule 415 461 promulgated under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number within five Trading Days of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be “reviewed,” or Additional not subject to further review, or (c) prior to the date when such Registration Statement, as applicable, Statement is first declared effective by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this AgreementCommission, the Company shall, as expeditiously as possible:
(i) prepare fails to file a pre-effective amendment and file with the SEC a Registration Statement with respect otherwise respond in writing to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled comments made by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, Commission in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of within ten Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective, or (d) a Registration Statement filed or required to be filed hereunder is not declared effective by the Company of Commission on or before the Effectiveness Date, or (e) after a Registration Statement is first declared effective by the Commission, it ceases for any notification with respect reason to the suspension of the qualification of such remain continuously effective as to all Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact which it is required to be stated effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any such cases an aggregate of ten Trading Days (which need not be consecutive Trading Days) (any such failure or necessary breach being referred to make as an “Event,” and for purposes of clause (a) or (d) the statements therein not misleading date on which such Event occurs, or for purposes of clause (b) the date on which such five Trading Day period is exceeded, or for purposes of clauses (c) the date which such ten Trading Day period is exceeded, or for purposes of clause (e) the date on which such ten Trading Day period is exceeded being referred to as “Event Date”), then in additional to any other rights the light of Holders may have hereunder or applicable law: (x) on each such Event Date the circumstances then existing, and promptly prepare, file with the SEC and furnish Company shall pay to each Holder an amount in cash, as liquidated damages and not as a supplement penalty, equal to or an amendment 1% of the aggregate purchase price paid by such Prospectus as may be necessary so that Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Prospectus Event Date (if the applicable Event shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make have been cured by such date) until the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriterdate payable, the Company shall not will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that is permitted to be relieved of any obligations it has hereunderpaid by applicable law) to the Holder, 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
Registration. (a) The On or prior to the applicable Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to any keep the Registration Statement continuously effective during the entire Effectiveness Period. The initial Registration Statement shall contain 1) the Shares, 2) the Placement Agent Warrant Shares and 3) the securities set forth on Schedule 3.1(v) to the Purchase Agreement. In the event that the amount of securities which may be included in the Registration Statement filed pursuant to this Section 2(a) is limited due to Commission Comments, the number of securities being registered for resale by each selling stockholder on such Registration Statement shall be cut back pro rata in relation to the aggregate number of securities of the Company being cut back and removed from such Registration Statement. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a) cannot be so included due to Commission Comments, then the Company shall prepare and file by the applicable Filing Date for such Registration Statement(s), such number of additional Registration Statements as may be necessary in order to ensure that all Registrable Securities are covered by an existing and effective Registration Statement. Accordingly, if for example, an initial Registration Statement is filed under Section 2(b) to register Registrable Securities removed from a Registration Statement filed under Section 2(a) due to Commission Comments and Commission Comments again require shares to be removed for such newly filed Registration Statement under this Section 2(b), then the Company will prepare and file additional Registration Statements until such time as all such required shares are covered by effective Registration Statements. Any Registration Statements to be filed under this Section shall be for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier entire Effectiveness Period. In the event that the amount of (x) the date on securities which all Registrable Securities covered by may be included in any such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction filed pursuant to Rule 144 (this section is limited due to Commission Comments, the “Effective Period”). Such number of securities being registered for resale by each selling stockholder on such Registration Statement shall not include any Ordinary Shares or other be cut back pro rata in relation to the aggregate number of securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder being cut back and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New removed from such Registration Statement”), in either case covering . By 5:00 p.m. (New York City time) on the maximum number Business Day immediately following the Effective Date of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be obligated used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to filed by the Filing Date for such Registration Statement and declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to advocate keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the SEC for Commission in accordance with Rule 424 under the registration of all of Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with any publicly-available written Section 2(a), 2(b) or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement2(c) herein, as the case may bebe (whether or not such a prospectus is technically required by such Rule), under or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: on such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register not be liable for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities liquidated damages under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification Agreement with respect to any comments by Placement Agent Warrant Shares. In no event will the SEC with respect Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Investment Amount of the Holders in any 30-day period and the maximum aggregate liquidated damages payable to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, a Holder under this Agreement shall be six percent (ii6%) of the receipt aggregate Investment Amount paid by the Company of any notification with respect such Holder pursuant to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect Purchase Agreement. The partial liquidated damages pursuant to the suspension terms hereof shall apply on a daily pro-rata basis for any portion of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time a month prior to the end cure of an Event, except in the case of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legendsfirst Event Date. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved liable for liquidated damages under this Agreement as to any Registrable Securities which are not permitted by the Commission to be included in a Registration Statement due solely to Commission Comments from the time that it is determined that such Registrable Securities are not permitted to be registered solely due to Commission Comments until such time as the provisions of this Agreement as to the next applicable Registration Statement required to be filed hereunder are triggered, in which case the provisions of this Section 2(d) shall once again apply, if applicable.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a) or Section 2(e), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date in the case of Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a) and by the Second Filing Date in the case of Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(e) for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. In no event shall the Company be obligated to pay any liquidated damages to any Holder pursuant to this Section 2(c) in an aggregate amount that exceeds 10% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the aggregate Investment Amount that is attributable to any Registrable Securities that are sold prior to an Event Date. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statementcure of an Event, except in the case of the first Event Date.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, The Company shall not be required to include the filing deadline Registrable Securities of a New Holder in a Registration Statement and an Additional Registration Statement shall not be the tenth (10threquired to pay any liquidated or other damages under Section 2(c) day after the date that to any Holder who fails to furnish to the Company is allowed a fully completed Selling Holder Questionnaire at least two Trading Days prior to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission GuidanceFiling Date (subject to the requirements set forth in Section 3(a)).
(be) Subject In the event the Second Closing (as defined in the Purchase Agreement) does not occur prior to the requirements of Filing Date for the Registration Statement required by Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement2(a), the Company shall, as expeditiously as possible:
(i) shall prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Securities covering the resale of all Warrant Shares not already covered by an existing and use its best efforts to cause a effective Registration Statement that registers for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such Registrable Securities other form appropriate for such purpose). Such Registration Statement shall contain (except if otherwise required pursuant to become effective, and keep written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective until all of under the Registrable Securities have been disposed of;
(ii) prepare Act as soon as possible but, in any event, no later than its Second Effectiveness Date, and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary shall use its reasonable best efforts to keep the Registration Statement continuously effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (China Natural Gas, Inc.)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable Securities). Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts (i) to cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the expiration of the Effectiveness Period.
(b) If for any reason the Commission does not permit all of the Shares and Warrant Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason (other than a Holder’s failure to comply with the requirements of Section 2(d) or 6(d)) any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the 30th day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereofEffectiveness Date for such Registration Statement, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for an aggregate of more than 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under the Transaction Documents or under applicable law, at the option of each Holder, commencing on the date after the Event Date, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to .0003333 of the Investment Amount paid by such Investor under the Purchase Agreement for each day up through the second monthly anniversary of such Event Date and then .0006666 of the Investment Amount paid by such Investor under the Purchase Agreement for each day thereafter until the applicable Event is cured. The liquidated damages referred to in the previous sentence shall be payable every four weeks, beginning on the date which is four weeks from the Event Date. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register for resale those Registrable Securities that were not registered for resale on be paid by applicable law) to the Registration StatementHolder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) hereof to such Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Vineyard National Bancorp)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such form of purpose). The Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Registration Statement without restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under the Securities Act or (ii) the date on which the Investors shall have sold all of the Registrable Securities covered by such Registration Statement (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date during the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 95% of the then Registrable Securities are then registered in a Registration Statement(s), then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the resale by the Holders of not less than 100% of the number of then Registrable Securities.
(d) If: (i) a Registration Statement is the earlier of not filed on or prior to its Filing Date, (xii) the date on which all Registrable Securities covered by such Registration Statement have been sold is not declared effective by the Commission within five business days of the date upon which the Commission or its staff notifies the Company or its counsel that the Commission has no further comments on, or will not review, the Registration Statement; (iii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (yiv) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 after its Effective Date, (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, A) as a result of the application occurrence of Rule 415 under the Securities Acta Company Event (as defined below), such Registration Statement ceases to be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder effective and use its best efforts to file amendments available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for up to no more than 7 consecutive Trading Days (or 20 Trading Days in any 12 month period in the aggregate) or (B) such Registration Statement ceases to be effective and available to the Holders as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of to all Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available which it is required to register for resale the Registrable Securities as a secondary offering; provided, however, that cover at any time prior to filing the expiration of its Effectiveness Period for any reason other than a Company Event (as defined below) for up to no more than 7 consecutive Trading Days (or 20 Trading Days in any 12 month period in the aggregate) (any such amendment failure or New Registration Statement, the Company shall be obligated breach being referred to use its best efforts to advocate with the SEC as an “Event,” and for the registration purposes of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended), or the New Registration Statement (the “Additional Registration Statements”). For date on which such Event occurs, or for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth clause (10thiii)(B) day after the date that the Company is allowed to file on which such New Registration Statement 3 consecutive Trading Day-period or Additional Registration Statement15 Trading Day-period, as applicable, by is exceeded, or for purposes of clause (iii)(A) the SEC date on which such 20 consecutive Trading Day-period or Commission Guidance.
(b) Subject 20 Trading Day-period, as applicable, is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate Purchase Price of such Holder pursuant to the Purchase Agreement; and (y) on each 30-day anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shallshall pay to each Holder an amount in cash, as expeditiously liquidated damages and not as possible:
a penalty, equal to 1.0% of the aggregate Purchase Price paid by such Holder pursuant to the Purchase Agreement. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. “Company Event” as used herein means the existence of material non-public information regarding the Company which the Board of Directors of the Company reasonably determines not to be in the best interests of the Company to disclose, including a significant business opportunity (including, but limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction) available to the Company, but which would be required to be disclosed in a Registration Statement. The payments to which a Holder shall be entitled pursuant to this Section 2(d) are referred to herein as “Registration Delay Payments.” In the event the Company fails to make Registration Delay Payments in a timely manner, such Registration Delay Payments shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial months) until paid in full. Notwithstanding anything herein or in the Securities Purchase Agreement to the contrary, (i) prepare no Registration Delay Payments shall be due and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act payable with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by Warrants or the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, Warrant Shares and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) in no event shall the aggregate amount of Registration Delay Payments (other than Registration Delay Payments payable pursuant to events that are within the control of the receipt by Company) exceed, in the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purposeaggregate, (iii) 10% of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementaggregate Purchase Price.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The In accordance with the requirements of Section 2.4 below, the Company shallshall file with the Commission, and use its commercially reasonable best efforts to cause to be declared effective by the Commission as soon as practicablepracticable after the filing thereof, but a registration statement on the applicable Commission form with respect to the resale from time to time, whether underwritten or otherwise, of all of the Registrable Securities by the Holders thereof, including a Plan of Distribution in no event later than March 31the form attached hereto as Exhibit A. If any Holder of Registrable Securities subsequently proposes to sell such Registrable Securities in a transaction not covered by the Plan of Distribution, 2016 (the “Filing Deadline”)Company shall file a supplement or amendment to update the Plan of Distribution section to cover such intended means of distribution. The Company shall also use its commercially reasonable best efforts to maintain the effectiveness of the registration effected pursuant to this Section 2.1, prepare to supplement and file with amend the SEC a Registration Statement covering registration statement to the extent necessary to ensure that such registration statement is available or, if not available, that another registration statement is available, for the resale of all the Registrable Securities by the Holders and to keep such registration statement free of any material misstatements or omissions at all times, subject only to the limitations on effectiveness set forth below. If at any time a registration statement filed pursuant to this Section 2.1 is not effective or is not otherwise available for an offering the resale of all the Registrable Securities by the Holders, the Holders (or any of them) may demand registration under the Securities Act of all or part of their Registrable Securities at any time and from time to time, and the Company shall file with the Commission following receipt of any such demand one or more registration statements with respect to all such Registrable Securities and use its commercially reasonable best efforts to cause such registration statement to be made on a continuous basis declared effective by the Commission as soon as practicable after the filing thereof. The registration contemplated by this Section 2.1 is referred to herein as the “Mandatory Registration.” The Mandatory Registration shall be filed with the Commission in accordance with and pursuant to Rule 415. Such Registration Statement shall be on Form F-3 415 promulgated under the Securities Act (or, if Form F-3 is not or any successor rule then available to the Company, on such form of Registration Statement as is then available to effect in effect) (a registration for resale of the Registrable Securities“Shelf Registration”). The Company shall use its commercially reasonable best efforts (i) to cause such Registration Statement the registration statement filed on Form F-3 or any similar short-form registration as the Company may elect to be declared remain effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date (the “Shelf Termination Date”) as is the earlier of (xi) the date on which all Registrable Securities covered by such Registration Statement included in the registration statement shall have been sold or shall have otherwise ceased to be Registrable Securities, and (yii) the date on which the all remaining Registrable Securities may be sold pursuant to Rule 144 and otherwise without any restriction or limitation pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include or any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 successor thereto) under the Securities Act, be registered for resale after taking into account any Holder’s status as a secondary offering on a single registration statement, an Affiliate of the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments as determined by counsel to the Registration Statement as required by Company pursuant to a written opinion letter addressed to the SEC and/or (ii) withdraw Company’s transfer agent to such effect. If the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available Company is not then eligible to register for resale the Registrable Securities on Form F-3, such registration shall be on another appropriate form in accordance herewith. In the event the Mandatory Registration must be effected on Form F-1 or any similar long-form registration as the Company may elect, the Company shall file such registration statement as a secondary Shelf Registration and the Company shall use its commercially reasonable best efforts to have such registration statement become effective as soon as possible after filing and to keep such registration statement current and effective, including by filing periodic post-effective amendments to update the financial statements contained in such registration statement in accordance with Regulation S-X promulgated under the Securities Act until the Shelf Termination Date. By 9:30 a.m. on the Trading Day immediately following the effective date of the applicable registration statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such registration statement.
(b) If, (i) as a result of applicable law or based upon comments received by the Commission, all of the securities to be included in the registration statement for any registration initiated on behalf of the Holders pursuant to Section 2.1(a) cannot be so included, or (ii) the registration statement for any registration initiated on behalf of the Holders pursuant to Section 2.1(a) relates to the offering of Registrable Securities in an underwritten offering, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without having an adverse effect on such offering, then the Company shall include in such registration (x) first, such number of Registrable Securities requested to be included therein (allocated pro rata among the Holders based on the relative number of such Registrable Securities then held by each such Holder or in such manner as they may otherwise agree); (y) second, the securities that the Company desires to sell; and (z) third, the securities proposed to be sold in such registration by holders of securities other than the Registrable Securities.
(c) Notwithstanding anything to the contrary contained in this Agreement, in the event the Company shall furnish to the Sellers a certificate signed by the Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be detrimental to the Company or the current or planned operations, business or financing opportunities of the Company for a Mandatory Registration or Shelf Registration to be effected or maintained at such time, in which event the Company shall have the right to defer the filing of, decline to maintain, or terminate the effectiveness of the Mandatory Registration or Shelf Registration for a reasonable period of time of not more than forty-five (45) days after the date of such certificate under this Section 2.1(c); provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of utilize this right more than once in any obligations it has hereundersix-month period.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) three years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement as required by the SEC and/or is not filed on or prior to its Filing Date, or (ii) withdraw the a Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered is not declared effective by the SEC, Commission on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing its required Effectiveness Date (any such amendment failure or New Registration Statement, the Company shall be obligated breach being referred to use its best efforts to advocate with the SEC as an "Event," and for the registration purposes of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that on which such Event occurs being referred to as "Event Date"), then in addition to any other rights the Company is allowed to file Holders may have hereunder or under applicable law: on each such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effectiveEvent Date, and keep on each monthly anniversary of each such Registration Statement effective until all of Event Date (if the Registrable Securities applicable Event shall not have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered cured by such Registration Statement;
(iiidate) furnish to each Holder a Prospectus (which requirement may be fulfilled by until the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the Registration Statement cause an opinion of legal counsel as aggregate Investment Amount paid by such Holder (or its predecessor-in-interest) pursuant to the effectiveness Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementcure of an Event.
(cd) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a "Selling Holder is deemed an underwriter, the Questionnaire"). The Company shall not be relieved required to include the Registrable Securities of any obligations it has hereundera Holder in a Registration Statement who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (China Natural Gas, Inc.)
Registration. (a) The Company shall, as soon as practicable, but in no event No later than March 31the Filing Date, 2016 (the “Filing Deadline”), prepare and Company shall file with the SEC a Commission the Initial Registration Statement covering relating to the resale by the Holders of all (or such other number as the Commission will permit) of the Registrable Securities. If Form S-3 is not available for the registration of the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement hereunder, the Company shall be on Form F-3 (or, if Form F-3 is not then available to i) register the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities)Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as such form is available; provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission. The Subject to the terms of this Agreement, the Company shall use its best commercially reasonable efforts (i) to cause such a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective by the SEC under the Securities Act within one hundred twenty (unless it becomes effective automatically upon filing120) as promptly as possible days after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement (i) have been sold sold, thereunder or pursuant to Rule 144, or (yii) the date on which the Registrable Securities may be sold without any restriction volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holder (the “Effective Effectiveness Period”). Such The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. Eastern Time on a Trading Day. The Company shall not include any Ordinary Shares immediately notify the Holder via facsimile or other securities by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. Eastern Time on the account Trading Day after the effective date of any other holder without such Registration Statement, file a final Prospectus with the prior written consent Commission as required by Rule 424. Failure to so notify the Holders within one (1) Trading Day of Investor. such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(g).
(b) Notwithstanding the registration obligations set forth in this Section 8.162(a), if the SEC Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder of the Holders thereof and use its best commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”)Commission, in either case covering the maximum number of Registrable Securities permitted to be registered by the SECCommission, on Form F-3 S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment or New Registration Statementamendment, the Company shall be obligated to use its best diligent efforts to advocate with the SEC Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any publicly-available other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
(i) first, the Company shall reduce or eliminate any securities to be included by any Person other than a Holder; and
(ii) second, the Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Conversion Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written or oral guidance, comments, requirements or requests of notice along with the SECcalculations as to such Holder’s staff (“Commission Guidance”)allotment. In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as in accordance with the case may be, under clauses (i) or (ii) aboveforegoing, the Company will use its best commercially reasonable efforts to file with the SECCommission, as promptly as allowed by Commission or SEC Guidance provided to the SEC Company or Commission Guidanceto registrants of securities in general, one or more Registration Statements registration statements on Form F-3 S-3 or such other forms form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) Provided that no event of default exists under the Purchase Agreement or any of the other Transaction Documents, or if: (i) the New Initial Registration Statement is not filed on or prior to the Filing Date (if the “Additional Company files the Initial Registration Statements”). For purposes of this AgreementStatement without providing the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the filing deadline Company shall be deemed to have not satisfied this clause (i)) or (ii) the Company fails to file with the Commission a request for acceleration of a New Registration Statement and an Additional Registration Statement shall be in accordance with Rule 461 promulgated by the tenth Commission pursuant to the Securities Act, within five (10th5) day after Trading Days of the date that the Company is allowed to file notified (orally or in writing, whichever is earlier) by the Commission that such New Registration Statement will not be “reviewed” or Additional will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, as applicable, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC Commission in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the Commission Guidance.
that such amendment is required in order for such Registration Statement to be declared effective, or (biv) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until registering for resale all of the Registrable Securities have been disposed of;
(ii) prepare and file with is not declared effective by the SEC such amendments and supplements to such Registration Statement and Commission by the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions Effectiveness Date of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Initial Registration Statement, or (iiv) any suspension after the effective date of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of such Registration Statement ceases for any reason to remain continuously effective as to all restrictive legends. In connection therewithRegistrable Securities included in such Registration Statement, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the DepositaryHolders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clause (i) thirty (30) calendar days after the date on which such Event occurs, and for purpose of clause (ii), the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such fifteen (15) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date thereafter (if the applicable Event shall not have been cured by such date) or any pro rata portion thereof, until the applicable Event is cured or sixty (60) calendar days after the applicable Event Date, whichever occurs first, the Company shall promptly pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of one percent (1.0%) multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement; provided that the maximum amount payable thereunder shall not exceed four percent (4%) of the aggregate Subscription Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the effectiveness date payable, the Company will pay interest thereon at a rate of the Registration Statement cause an opinion of legal counsel as eighteen percent (18%) per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the effectiveness of Holder, accruing daily from the Registration Statement to be delivered to date such agent or the Depositarypartial liquidated damages are due until such amounts, together with any other authorizationsplus all such interest thereon, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementare paid in full.
(ce) The Notwithstanding anything to the contrary contained herein but subject to comments by the Commission, in no event shall the Company understands that each Holder disclaims being an underwriter, but in the event be permitted to name any Holder is deemed an underwriter, or affiliate of a Holder as any Underwriter without the Company shall not be relieved prior written consent of any obligations it has hereundersuch Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (New Age Beverages Corp)
Registration. (a) The Company shall, as As soon as reasonably practicable, but in no event later than March 31the Filing Date, 2016 (the “Filing Deadline”), Company shall prepare and file with the SEC Commission a Registration Statement on Form S-1 covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its reasonable best efforts (i) to cause the Registration Statement to be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included on a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis at the market pursuant to Rule 415 or otherwise as may be acceptable to a Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 95% of the then Registrable Securities are then registered on a Registration Statement(s), then the Company shall file as soon as reasonably practicable, but in any event not later than 30 days after less than 95% of the Registrable Securities are then registered on a Registration Statement, subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the resale by the Holders of not less than 100% of the number of then Registrable Securities. The calculation set forth in the foregoing sentence shall be made without regard to any limitation on the exercise of the Warrants and such calculation shall assume that the Warrants are then exercisable for shares of Common Stock at the then prevailing applicable Exercise Price (as defined in the Warrants).
(d) If: (i) a Registration Statement covering all of the Registrable Securities required to be covered thereby is not filed by the Company with the Commission on or prior to the Filing Date (or the applicable filing date if the Registration Statement is not the initial Registration Statement required to be filed under Section 2(a)), (ii) a Registration Statement covering all of the Registrable Securities is not declared effective by the Commission on or prior to its required Effectiveness Date (it being understood that if the Company shall not have filed a “final” prospectus for the Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(g) below (whether or not such a prospectus is technically required by such rule), the Company shall not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of the Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) there is a suspension or delisting of the earlier Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, other than during an Allowable Grace Period (as defined below), such Registration Statement ceases to be effective and available for use by the Holders as to any Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for up to no more than 3 consecutive Trading Days (xor 20 Trading Days in any 12 month period in the aggregate) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i)-(iv), on the date on which all Registrable Securities covered by such Registration Statement have been sold Event occurs, or for purposes of clause (y) v), the date on which the Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; and (y) on each 30-day anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, in no event shall the partial damages under this Section 2(d) exceed an amount equal to 20% of the aggregate Investment Amounts.
(e) Notwithstanding anything to the contrary contained in this Agreement, in the event the staff of the Commission (the “Staff”) or the Commission seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities by or on behalf of the Company, or in any other manner, such that the Staff or the Commission do not permit such Registration Statement to become effective and used for resales in a manner that does not constitute such an offering and that permits the continuous resale at the market by the Holders participating therein (or as otherwise may be acceptable to each Holder) without being named therein as an “underwriter,” then the Company shall reduce the number of shares to be included in such Registration Statement by all Holders until such time as the Staff and the Commission shall so permit such Registration Statement to become effective as aforesaid. In making such reduction, the Company shall reduce the number of shares to be included by all Holders on a pro rata basis (based upon the number of Registrable Securities otherwise required to be included for each Holder) unless the inclusion of shares by a particular Holder or a particular set of Holders are resulting in the Staff or the Commission’s “by or on behalf of the Company” offering position, in which event the shares held by such Holder or set of Holders shall be the only shares subject to reduction (and if by a set of Holders on a pro rata basis by such Holders or on such other basis as would result in the exclusion of the least number of shares by all such Holders). In addition, in the event that the Staff or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Purchase Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such reduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages pursuant to Section 2(d) hereof or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Securities Purchase Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in relation thereto). In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be sold resold by such Holder without any restriction (including volume limitations) pursuant to Rule 144 144(b)(i) of the Securities Act (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the taking account of any other holder without Staff position with respect to “affiliate” status) or (iii) the prior written consent Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Investor. Notwithstanding Registrable Securities in order to permit the re-sale thereof by such Holder as contemplated above).
(f) In the event that Form S-1 is not available for the registration obligations set forth in this Section 8.16of the resale of Registrable Securities hereunder, if the SEC informs the Company that all shall use reasonable best efforts to (i) register the resale of the Registrable Securities cannoton another appropriate form reasonably acceptable to the Holders and (ii) undertake to register the Registrable Securities on Form S-1 as soon as such form is available, provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time as a result of Registration Statement on Form S-1 covering the application of Rule 415 under Registrable Securities has been declared effective by the Commission. In the event the Company becomes eligible to register the Registrable Securities Act, be registered for resale as a secondary offering on a single registration statementForm S-3, the Company agrees to promptly (i) inform each Holder and shall use its reasonable best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to promptly register for resale the Registrable Securities on Form S-3, provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement(s) then in effect until such time as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(g) By 5:30 p.m. on the Trading Day immediately following the Effective Date of each Registration Statement, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written or oral guidance, comments, requirements or requests of Rule 424 under the SEC’s staff (“Commission Guidance”). In Securities Act the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts final prospectus to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary sales pursuant to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Health Benefits Direct Corp)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best reasonable commercial efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) all Registrable Securities covered by such Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (each, an “Effectiveness Period”).
(b) If: (i) any Registration Statement is not filed on or prior to the applicable Filing Date for such Registration Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission by the applicable Effectiveness Date; (iii) after a Registration Statement is filed with and declared effective by the Commission, a Discontinuation Event (as hereafter defined) shall occur and be continuing, or such Registration Statement ceases to be effective (by suspension or otherwise) as to all Registrable Securities to which it is required to relate at any time prior to the expiration of the Effectiveness Period applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective), for a period of time which shall exceed 30 days in the aggregate per year or more than 20 consecutive calendar days (defined as a period of 365 days commencing on the date such Registration Statement is declared effective); or (iv) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall not have been able to cure such trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market); (any such failure or breach being referred to as an “Event,” and for purposes of clause (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the Registrable Securities date which such 30 day or 20 consecutive day period (as the case may be sold without any restriction pursuant be) is exceeded, or for purposes of clause (iv) the date on which such three (3) Trading Day period is exceeded, being referred to Rule 144 (the as “Effective PeriodEvent Date”). Such Registration Statement , then as partial relief for the damages to the Purchaser by reason of the occurrence of any such Event (which remedy shall not include any Ordinary Shares or other securities for the account be exclusive of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth remedies available at law or in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”equity), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated pay to use its best efforts the Purchaser, as liquidated damages and not as a penalty, for each day that an Event has occurred and is continuing, an amount in cash equal to advocate with one-thirtieth (1/30th) of the SEC product of (A) the original aggregate principal amount of the Convertible Notes multiplied by (B) the Applicable Percentage (as hereafter defined). For purposes hereof, the term “Applicable Percentage” means (i) for the registration first thirty (30) day period following the occurrence and during the continuance of all such Event, one percent (1%), (ii) for the second thirty (30) day period following the occurrence and during the continuance of the Registrable Securities in accordance with any publiclysuch Event, one and one-available written or oral guidancehalf percent (1.5%) and (iii) thereafter, comments, requirements or requests of the SEC’s staff two percent (“Commission Guidance”2%). In the event the Company amends fails to make any payments pursuant to this Section 2(b) in a timely manner, such payments shall bear interest at the Registration Statement or files a New Registration Statement, as rate of 1.5% per month (prorated for partial months) until paid in full. Notwithstanding anything to the case may be, under clauses (i) or (ii) abovecontrary set forth herein, the Company will use its best efforts maximum aggregate amount of liquidated damages that may be charged to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed pursuant to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(bthis Section 2(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all shall not exceed 24% of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions original aggregate principal amount of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementConvertible Notes.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (American Technologies Group Inc)
Registration. (a) The On or prior to the Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 SB-2 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form SB-2, in which case such registration shall be on another appropriate form for such form purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is then available to effect a registration for resale the earlier of (i) two years after the Effective Date, (ii) at such time as all of the Registrable SecuritiesSecurities have been publicly sold by the Holders, or (iii) at such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Shares to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the 30th calendar day following such date, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-B2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-B2, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” substantially in the form attached hereto as Annex A. The Company shall use its best efforts (i) to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereof90th calendar day following the date on which the Company becomes aware that such Registration Statement is required under this Agreement (each such 90th calendar day, the “Effectiveness Date” for such Registration Statement), and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for an aggregate of more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under the Transaction Documents or under applicable law on each such Event Date and each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the Subscription Price paid by each Holder for each 30 day period that the Company has failed to comply with its obligations set forth herein. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statement, cure of an Event.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) hereof to such Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Great American Family Parks Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement, for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) eight years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “EFFECTIVENESS PERIOD”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent “Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution” attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, the Company agrees to promptly (i) inform each Holder by its Effectiveness Date, and shall use its reasonable best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement continuously effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of under the Securities Act and during the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective entire Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(cd) The If a Registration Statement is not filed on or prior to its Filing Date (if the Company understands that each Holder disclaims being an underwriter, but in files a Registration Statement without affording the event any Holder is deemed an underwriterHolders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be relieved deemed to have satisfied this clause (i)(such failure or breach being referred to as an “EVENT” and the date on which such Event occurs, being referred to as the “EVENT DATE”), then in addition to any other rights the Holders may have hereunder or under applicable law, the Company shall issue to the holders of the Registrable Securities, as liquidated damages and not as a penalty, warrants (“ADDITIONAL WARRANTS”). The number of Additional Warrants that shall be issued to a Holder is equivalent to one Additional Warrant for every Warrant and Warrant Share owned by such Holder. The Additional Warrants will have a per share exercise price equal to the lower of (a) the average of the closing sale price of our Common Stock for twenty of the thirty Trading Days immediately preceding the date the Registration Statement should have been filed, or (b) $1.50 per share. The Additional Warrants will be exercisable for five years, and will be in the same form as the warrants issued as part of the Units in the Offering.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “SELLING HOLDER QUESTIONNAIRE”). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to issue any obligations it has hereunderAdditional Warrants or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Daybreak Oil & Gas Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on an appropriate form for such purpose. Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, but in no event more than thirty days after such date, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter.
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on an appropriate form for such purpose. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and/or available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% (subject to reduction as provided in the following sentence) of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% (subject to reduction as provided in the following sentence) of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. After such time as the Company shall have become obligated pursuant to this Section 3(c) to any Holder to make payments in aggregate of 4.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement, then the amount of liquidated damages to be calculated in accordance with the preceding sentence shall thereafter be reduced from 1.0% to 0.5% with respect to all damages accruing in excess of 4.0% of the aggregate Investment Amount paid by such Holder for Shares. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statementcure of an Event, except in the case of the first Event Date.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (Following the “Filing Deadline”), Closing Date the Buyer shall use its commercially reasonable best efforts to prepare and file with the SEC Commission as soon as possible but, in any event, no later than the Filing Deadline, a Registration Statement on Form S-3 covering the resale of all Buyer Shares that are Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement The Buyer shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofpossible, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act until such the date as which is the earlier of (xi) one year after the date on which Closing Date, (ii) such time as all Registrable Securities of the registered Buyer Shares covered by such Registration Statement have been sold by the Holders, or (yiii) such time as all of the date on which the Registrable Securities may be sold without any restriction registered Buyer Shares become eligible for resale by non-affiliates pursuant to Rule 144 (the “Effective Initial Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject Following the Earnout Payment Date the Buyer shall use its commercially reasonable best efforts to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC Commission as soon as possible but, in any event, no later than the Filing Deadline, a Registration Statement with respect on Form S-3 covering the resale of all Earnout Shares issued under Exhibit E to such the Agreement that are Registrable Securities and use its best efforts for an offering to be made on a continuous basis pursuant to Rule 415. The Buyer shall cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement to be declared effective until all of under the Registrable Securities have been disposed of;
(ii) prepare Act as soon as possible, and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary shall use its reasonable best efforts to keep the Registration Statement continuously effective for the Effective Period and to comply with the provisions of under the Securities Act and until the Exchange Act with respect to date which is the disposition earlier of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of one year after the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect theretoEarnout Payment Date, (ii) such time as all of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities registered Earnout Shares covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested have been sold by the Investor;
Holders, or (viiiii) immediately notify each Holder, at any such time prior to the end as all of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary registered Earnout Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee become eligible for resale by non-affiliates pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by Rule 144 (the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement“Subsequent Effectiveness Period”).
(c) The Company understands that As a condition precedent to the inclusion of each Holder disclaims being an underwriter, but Holder’s Registrable Securities in the event any Holder is deemed an underwriterRegistration Statement, the Company Holder shall complete and deliver to the Buyer not be relieved less than five Business Days prior to the filing of the Registration Statement a completed Questionnaire in the form attached to this Agreement as Annex A (a “Selling Holder Questionnaire”). If a Holder’s Registrable Securities are not included in the Registration Statement because the Holder fails to deliver a completed Selling Holder Questionnaire on a timely basis, the obligation of the Buyer to register any obligations it has hereunderof such Holder’s Registreable Securities under the Agreement shall terminate.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). The parties agree that a registration statement filed in accordance with the Existing Registration Rights Agreement, which includes Registrable Securities, shall be a Registration Statement which for purposes of such Registrable Securities satisfies the Company’s obligations under this Section 2(a) with respect to such included Registrable Securities.
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (x) entire Effectiveness Period. The parties agree that a registration statement filed in accordance with the date on Existing Registration Rights Agreement, which all includes Registrable Securities covered by such hereunder, shall be a Registration Statement have been sold or (y) the date on which the for purposes of such Registrable Securities may be sold without any restriction pursuant to Rule 144 (satisfies the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration Company’s obligations set forth in under this Section 8.16, if the SEC informs the Company that all of the 2(b) with respect to such included Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly Securities.
(c) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven calendar days after the date payable, 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 Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date.
(d) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement continuously effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of under the Securities Act and during the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder entire Effectiveness Period. The parties agree that a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, registration statement filed in conformity accordance with the requirements of the Securities ActExisting Registration Rights Agreement, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the which includes Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such hereunder, shall be a Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC which for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification purposes of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by satisfies the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor obligations under the Registration Statementthis Section 2(d).
(ce) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a “Selling Holder is deemed an underwriter, the Questionnaire”). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and shall file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration statement for the resale of the Registrable Securities, not later than thirty (30) Business Days after the Execution Date, which registration statement shall be filed with the SEC on Form F-1 (the “Initial Registration Statement”). The Company shall use its best commercially reasonable efforts to (i) to cause such the Registration Statement (as defined below) to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Dayspracticable, and (ii) to keep such the Registration Statement continuously effective under the Securities Act until such date as is the earlier Investor ceases to hold Registrable Securities. The Registration Statement shall provide for any method or combination of (x) the date on which all methods of resale of Registrable Securities covered by such legally available to, and requested by, the Investor, and shall comply with the relevant provisions of the Securities Act and Exchange Act. The Investor acknowledges that it will be identified in the Registration Statement have been sold or (yas an underwriter within the meaning of Section 2(a)(11) of the date on which Securities Act, and the Investor shall furnish all information reasonably requested by the Company for inclusion therein and shall otherwise cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Registration Statement. If Form F-3 becomes available for the registration of the resale of all of the Registrable Securities hereunder, the Company may be sold without any restriction pursuant to Rule 144 (use such Form; provided, however, if Form F-3 is not available for the “Effective Period”). Such registration of the resale of all of the Registrable Securities hereunder, the Company shall maintain the effectiveness of the Registration Statement shall not include any Ordinary Shares or other securities for then in effect until such time as a registration statement on Form F-3 covering all of the account of any other holder without Registrable Securities has been declared effective by the prior written consent of Investor. SEC.
(b) Notwithstanding the registration obligations set forth in this Section 8.167.1(a), if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder the Investor and use its best commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file or a new Registration Statement registration statement (a “New Registration Statement”)) as required by the SEC, in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-1, Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior subject to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration provisions of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff Section 7.1(a).
(“Commission Guidance”). In the event c) If the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (iiin accordance with Section 7.1(b) above, the Company will use its best commercially reasonable efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidancepossible, one or more Registration Statements registration statements on Form F-1 or F-3 or such other forms form that is available to register for resale all of those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended. The Initial Registration Statement, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement Statement, and an Additional Registration Statement shall be the tenth (10th) day after the date that any other registration statements pursuant to which the Company is allowed seeks to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of register for resale any Registrable Securities under this Agreementshall each be referred to herein as a “Registration Statement” and collectively as the “Registration Statements.” The term “Registration Statement(s)” shall include any prospectus, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇registration statement or prospectus, including a preliminary prospectuspre-and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference, if any, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementregistration statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Such Registration Statement shall be contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) a “Plan of Distribution” section in form and substance substantially the same as the “Plan of Distribution” section included in the Company’s Registration Statement on Form F-3 S-3 (or, if Form F-3 is not then available to No. 333-112759) (the Company, on such form “Plan of Registration Statement as is then available to effect a registration for resale of the Registrable SecuritiesDistribution Section”). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act until such the date as which is the earlier of (xi) the date on which later to occur of (A) two years after its Effective Date, and (B) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders and (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold or (y) by the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 Holders (the “Effective Effectiveness Period”). Such Registration Statement shall .
(b) If for any reason the Commission does not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that permit all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, to be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to included in the Registration Statement as required filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the SEC and/or (ii) withdraw the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and file a new effective Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted for an offering to be registered by the SECmade on a continuous basis pursuant to Rule 415, on Form F-3 or such other form available S-3 (except if the Company is not then eligible to register for resale the Registrable Securities as a secondary offering; providedon Form S-3, however, that prior to filing in which case such amendment or New Registration Statement, the Company registration shall be obligated to use its best efforts to advocate with the SEC on another appropriate form for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”such purpose). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or Each such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be contain (except if otherwise required pursuant to written comments received from the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements upon a review of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by “Plan of Distribution” section in form and substance substantially the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents same as the Investor may reasonably request in order to facilitate the disposition Plan of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.Distribution
Appears in 1 contract
Sources: Registration Rights Agreement (Telecommunication Systems Inc /Fa/)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement, for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) eight years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, the Company agrees to promptly (i) inform each Holder by its Effectiveness Date, and shall use its reasonable best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement continuously effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of under the Securities Act and during the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective entire Effectiveness Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(cd) The If a Registration Statement is not filed on or prior to its Filing Date (if the Company understands that each Holder disclaims being an underwriter, but in files a Registration Statement without affording the event any Holder is deemed an underwriterHolders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be relieved deemed to have satisfied this clause (i)(such failure or breach being referred to as an "EVENT" and the date on which such Event occurs, being referred to as the "EVENT DATE"), then in addition to any other rights the Holders may have hereunder or under applicable law, the Company shall issue to the holders of the Registrable Securities, as liquidated damages and not as a penalty, warrants (“ADDITIONAL WARRANTS”). The number of Additional Warrants that shall be issued to a Holder is equivalent to one Additional Warrant for every Warrant and Warrant Share owned by such Holder. The Additional Warrants will have a per share exercise price equal to the lower of (a) the average of the closing sale price of our Common Stock for twenty of the thirty Trading Days immediately preceding the date the Registration Statement should have been filed, or (b) $1.50 per share. The Additional Warrants will be exercisable for five years, and will be in the same form as the warrants issued as part of the Units in the Offering.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to issue any obligations it has hereunderAdditional Warrants or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Daybreak Oil & Gas Inc)
Registration. (a) The On or prior to the Filing Date the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a "shelf" Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, if Form F-3 is not then available to the Company, or on another form appropriate for such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securitiesin accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities and any shares issuable pursuant to any warrant issued to any financial advisor or placement agent in connection with the transaction described in the Purchase Agreement (the "PLACEMENT SHARES") to be included in the Registration Statement and (ii) use its best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after within 90 days from the filing thereofClosing Date, but in any event prior to the Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (144(k) as determined by the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs counsel to the Company that all (such counsel to be reasonably acceptable to the Holders of a majority of the Registrable Securities cannotSecurities) pursuant to a written opinion letter, as a result addressed to the Company's transfer agent to such effect (the "EFFECTIVENESS PERIOD"). If an additional Registration Statement is required, for any reason, to be filed because the actual number of shares of Common Shares and Warrant Shares exceeds the number of shares of Common Stock initially registered in respect of the application of Rule 415 under Common Shares and the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementWarrant Shares, the Company shall be obligated have 20 Business Days to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New file such additional Registration Statement, as the case may be, under clauses (i) or (ii) above, and the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale declared effective by the Investor under the Registration StatementCommission as soon as possible, but in no event later than 90 days after filing.
(cb) The If the Registration Statement covering the Registrable Securities required to be filed by the Company understands that each Holder disclaims being an underwriterpursuant to Section 2(a) hereof is not declared effective by the Effectiveness Date, but in the event any Holder is deemed an underwriter, then the Company shall make payments to the Investors in such amounts and at such times as shall be determined pursuant to this Section 2(b) as partial relief for the damages to the Investors by reason of any such delay in or reduction of their ability to sell the Registrable Securities (which remedy shall not be relieved exclusive of any obligations it has hereunder.other remedies available at law or in equity). The Company shall pay to each holder of Registrable Securities an amount equal to the Liquidation Preference (as defined in the Certificate of Designations) of the Preferred Stock then outstanding and/or of the Common Stock (valued at the higher of $7.00 or the per share Market Price (as defined in the Warrant)), as applicable (the "AGGREGATE SHARE PRICE"), multiplied by the Applicable Percentage (as defined below) times the number of months (prorated for partial months) after the Effectiveness Date and prior to the date the Registration Statement is declared effective by the Commission; PROVIDED, HOWEVER, that there shall be excluded from such period any delays which are soley attributable to changes required by the Investors in the Registration Statement with respect to information relating to the Investors,
Appears in 1 contract
Registration. (a) The Within sixty (60) days after the Closing under the Exchange Agreement, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file or cause to be prepared and filed with the SEC Commission a Registration Statement covering registration statement for the resale purpose of all Registrable Securities for an offering registering the resale, from time to be made time by the Stockholders participating in the registration (as provided in subparagraph 1(b) below) on a delayed or continuous basis pursuant to Rule 415415 of the Securities Act, all of the Securities (the "Registration Statement"). Such The Registration Statement shall be on Form F-3 S-3, or another appropriate form permitting registration of such Securities for resale by the Selling Stockholders.
(or, if Form F-3 is not then available b) The Company shall include among the shares covered by the Registration Statement such portion of the Securities as shall be specified in a written request given to the CompanyCompany by one or more of the Stockholders within thirty 30 days after the date of the Closing under the Exchange Agreement. (individually, on a "Selling Stockholder", and collectively, the "Selling Stockholders"). Such written request shall include the information specified in Paragraph 3(b) (ii) below regarding each Selling Stockholder, and such form of other information as the Company may reasonably request. Each Selling Stockholder shall be named as a selling security holder in the Registration Statement and the related Prospectus in such a manner as is then available to effect a registration for resale permit such Selling Stockholder to deliver such Prospectus to purchasers of Securities in accordance with the Registrable Securities). Securities Act and applicable state securities laws generally applicable to all such Selling Stockholders.
(c) The Company shall use its reasonable best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act no later than the date that is one-hundred and twenty (unless it becomes effective automatically upon filing120) as promptly as possible days after the filing thereofdate of the Closing under the Exchange Agreement, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such the Registration Statement continuously effective under the Securities Act until such date as is the earlier for a period of not less than one (x1) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) full year from the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 first became effective under the Securities Act.
(d) The Company shall supplement and amend the Registration Statement if required by the rules, be registered for resale as a secondary offering on a single regulations or instructions applicable to the registration statement, form used by the Company agrees for such Registration Statement, if required by the Securities Act or, to promptly the extent to which the Company does not reasonably object, as reasonably requested by the Selling Shareholders.
(ie) inform each Holder and The Company shall use its reasonable best efforts to file amendments to effect the registration, qualification or compliance under any applicable securities or "blue sky" laws of jurisdictions within the United States of the Securities included in the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company ------------------ alone shall be entitled to determine the jurisdictions in which such registration, qualification or compliance shall be sought, and in no event shall the Company be obligated to use its best efforts qualify to advocate with the SEC for the registration of all of the Registrable Securities do business in accordance with any publicly-available written jurisdiction where it is not so qualified or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available take any action that would subject it to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, tax or the New Registration Statement service of process (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used other than process in connection with such Registration Statement as may be necessary registration) in any jurisdiction where it is not subject thereto.
(f) The Company shall furnish to keep each Selling Stockholder such number of copies of the Registration Statement effective for prospectus contained in the Effective Period and to comply with the provisions of registration statement filed under the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to including each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, ) in conformity with the requirements of the Securities Act, and such other documents as the Investor such Selling Stockholders may reasonably request in order to facilitate the disposition of the Registrable Securities owned held by it that are included in such registration;them which is covered by the registration statement; and
(ivg) The Company shall notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each HolderSelling Stockholder, at any time prior when a prospectus is required to be delivered under the end Securities Act, of the Effective Period, upon discovery that, or upon the happening of any event as a result of whichwhich the prospectus in the registration statement, the Prospectus as then in effect, includes an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existingmisleading, and promptly prepare, file with the SEC prepare and furnish to each Holder a them any reasonable number of copies of any supplement to or an amendment of such Prospectus prospectus as may be necessary so that that, as thereafter delivered, such Prospectus prospectus shall not include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementmisleading.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Arrowhead Research Corp)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Each Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (except if otherwise directed by the Holders) the "Plan of Distribution" attached hereto as -------------------- Annex A. The Company shall cause such form of Registration Statement to become ------- effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, but in any event prior to its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such each Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which is two years after the date that such Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction volume restrictions pursuant to Rule 144 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effective "Effectiveness Period”"). Such --------------------
(b) If: (a) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holder the opportunity to review and comment on the same as required by Section 3(a), the Company shall not include any Ordinary Shares be deemed to have satisfied this clause (a)), or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs (b) the Company that all of fails to file with the Registrable Securities cannot, as Commission a result of the application of request for acceleration in accordance with Rule 415 461 promulgated under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number within five Trading Days of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or Additional not subject to further review, or (c) prior to the date when such Registration Statement, as applicable, Statement is first declared effective by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this AgreementCommission, the Company shall, as expeditiously as possible:
(i) prepare fails to file a pre-effective amendment and file with the SEC a Registration Statement with respect otherwise respond in writing to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled comments made by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, Commission in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of within ten Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective, or (d) a Registration Statement filed or required to be filed hereunder is not declared effective by the Company of Commission by its Effectiveness Date, or (e) after a Registration Statement is first declared effective by the Commission, it ceases for any notification with respect reason to the suspension of the qualification of such remain continuously effective as to all Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact which it is required to be stated effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any such cases an aggregate of ten Trading Days (which need not be consecutive Trading Days) (any such failure or necessary breach being referred to make as an "Event," and for purposes of ----- clause (a) or (d) the statements therein not misleading date on which such Event occurs, or for purposes of clause (b) the date on which such five Trading Day period is exceeded, or for purposes of clauses (c) the date which such ten Trading Day period is exceeded, or for purposes of clause (e) the date on which such ten Trading Day period is exceeded being referred to as "Event Date"), then in additional to any other rights the light of ---------- Holders may have hereunder or applicable law: (x) on each such Event Date the circumstances then existing, and promptly prepare, file with the SEC and furnish Company shall pay to each Holder an amount in cash, as liquidated damages and not as a supplement penalty, equal to or an amendment 1% of the aggregate purchase price paid by such Prospectus as may be necessary so that Holder pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Prospectus Event Date (if the applicable Event shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make have been cured by such date) until the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the effectiveness date payable, the Company will pay interest thereon at a rate of the Registration Statement cause an opinion of legal counsel as 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the effectiveness of Holder, accruing daily from the Registration Statement to be delivered to date such agent or the Depositaryliquidated damages are due until such amounts, together with any other authorizationsplus all such interest thereon, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementare paid in full.
(c) The Company understands will file additional Registration Statements if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement. Such additional Registration Statement shall cover the resale by the Holders of not less than 110% of the number of shares required in order that each Holder disclaims being an underwriter, but in all Registrable Securities outstanding and issuable upon exercise of the event any Holder is deemed an underwriter, the Company shall not Warrants relating to such Registration Statement would then be relieved of any obligations it has hereunderregistered.
Appears in 1 contract
Sources: Registration Rights Agreement (Storage Computer Corp)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement (i) shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and, if the Company is a WKSI as of the Registrable Securities). Filing Date, shall be an automatic shelf registration statement; and (ii) shall contain (except if otherwise requested by the Electing Holders or required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its best commercially reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the registration rights under this Agreement terminate in accordance with Section 2(c) (i) the “Effectiveness Period”). In addition, the Company shall, promptly and from time to time, file such additional Registration Statements to cover resales of any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement no later than the Filing Date with respect thereto, and shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the SEC or otherwise to become effective under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible practicable after the filing thereofapplicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such the Registration Statement continuously effective under the Securities Act until such date as is at all times during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding anything to the registration obligations set forth contrary in this Section 8.162(a), if upon notice to the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statementHolders, the Company agrees to promptly (i) inform each Holder and may suspend the use its best efforts or the effectiveness of the Registration Statement, or extend the time period in which it is required to file amendments to the Registration Statement as required by Statement, for up to 75 days in the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement aggregate, in any 12-month period (a “New Suspension Period”) if the Board of Directors of the Company determines that there is a valid business purpose for suspension of the Registration Statement”), in either case covering the maximum number of Registrable Securities permitted ; provided that no such Suspension Period may overlap with any period from a redemption date set pursuant to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all Section 6 of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests Statement of Designations of the SEC’s staff (“Commission Guidance”)Preferred Stock and the date that is 30 Trading Days thereafter. In the event the Company amends exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to such Registration Statement in connection with any sale or offer to sell Registrable Securities. The Company shall promptly notify the Holders when the Registration Statement may once again be used or is effective.
(b) If: (i) any Registration Statement is not filed on or prior to its Filing Date (it being understood that if the Company files a New Registration StatementStatement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), (ii) a Registration Statement is not declared effective by the Commission or does not otherwise become effective on or prior to its required Effectiveness Date, (iii) the Company fails to file with the Commission a request for acceleration in accordance with Rule 461 promulgated under the Securities Act, within five Trading Days of the date on which the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be reviewed or is not subject to further review, or (iv) after its Effective Date, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the case may beexpiration of the Effectiveness Period (in each case, under except as specifically permitted herein with respect to any applicable Suspension Period) (any such failure or breach being referred to as a “Registration Default,” and for purposes of clauses (i) or (ii) abovethe date on which such Registration Default occurs, and for purposes of clause (iii) the date on which such five Trading Day period is exceeded and for purposes of clause (iv) the date on which the Registration Statement ceases to be effective and available, being referred to as the “Registration Default Date” and each period from and including the Registration Default Date during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, during the Registration Default Period, in addition to any other rights available to the Holders (including, without limitation, pursuant to Section 8(a)), the Company will use its best efforts shall pay a special payment (collectively, “Special Payments”) to file with the SECHolders (x) in respect of each share of Preferred Stock that is a Registrable Security, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available in an amount equal to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all 2.00% per annum of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing accrued liquidation preference of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements share of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposesPreferred Stock, and (ivy) in respect of each share of Common Stock issued upon conversion of Preferred Stock that is a Registrable Security, in an amount equal to 2.00% per annum of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal quotient of (i) any order suspending the effectiveness accrued liquidation preference of the Registration Statementshare of Preferred Stock at the time of its conversion, or divided by (ii) any suspension the number of shares of Common Stock issued upon conversion of such share of Preferred Stock. Special Payments shall accrue from the applicable Registration Default Date until all Registration Defaults have been cured, and shall be payable quarterly in arrears on each January 1, April 1, July 1 and October 1 following the applicable Registration Default Date to the record holder of the qualification (or exemption from qualification) applicable security on the date that is 15 days prior to such payment date, until paid in full. Special Payments payable in respect of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as Default Period shall be reasonably requested by computed on the Investor;
(vii) immediately notify each Holder, basis of a 360-day year consisting of twelve 30-day months. Special Payments shall be payable only with respect to a single Registration Default at any time prior to given time, notwithstanding the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to that multiple Registration Defaults may have occurred and be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementcontinuing.
(c) The Company understands that each Holder disclaims being an underwriter, but in registration rights granted under this Section 2 shall automatically terminate as of the event any Holder is deemed an underwriter, date and time at which all of the Company shall not be relieved of any obligations it has hereunderRegistrable Securities are Freely Tradable.
Appears in 1 contract
Sources: Registration Rights Agreement (Whole Foods Market Inc)
Registration. (a) The Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission, within 60 days of the date of this Agreement, a registration statement (the "Registration Statement") for the purpose of effecting a Registration Statement covering of the resale sale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities)Shares. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon Commission as soon as practicable but in no event later than 60 days after filing) as promptly as possible after the filing thereof, and shall respond . The Company agrees to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (xi) the date on which all Registrable Securities covered by such Registration Statement Shares have been sold pursuant to such registration statement or Rule 144 and (yii) the date on which which, in the Registrable Securities may be sold without any restriction pursuant reasonable opinion of counsel to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16Holders, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, Shares may be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities sold in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”Rule 144(k). In the event the The Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect Commission from time to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC time such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions period of the Securities Act and the Exchange Act with respect time specified in this Agreement. Notwithstanding anything to the disposition contrary set forth in this Agreement, the Company may defer its obligation to cause a Registration Statement to become effective or to amend or supplement a Registration Statement for a period of all securities covered not more than 60 days in the event of (i) an underwritten primary offering by the Company if the Company is advised by the managing underwriter of such offering that the sale of Registrable Shares under such Registration Statement would impair the pricing or commercial practicality of such offering, or (ii) pending negotiations relating to, or consummation of, a transaction or the occurrence of an event that would require additional disclosure of material information by the Company in such Registration Statement;
(iii) furnish , as to each Holder which the Company has a Prospectus (bona fide business purpose for preserving confidentiality or which requirement may be fulfilled by renders the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity Company unable to comply with the requirements of the Securities ActCommission and that would in each case make it impractical or inadvisable to cause such Registration Statement to become effective or to amend or supplement such Registration Statement; provided, and such other documents as however, that the Investor may reasonably request in order Company shall not defer or suspend its obligation under this Agreement to facilitate the disposition cause a Registration Statement to become effective or to amend or supplement a Registration Statement pursuant to this Section 8(a) for ------------ an aggregate period of the Registrable Securities owned by it that are included in such registration;
(iv) more than 90 days during any 12 month period. The Company shall notify each Holder and its counsel of the existence and, in writing the case of an event referred to in clause (i) of this Section 8(a), the receipt nature of any such event. ------------
(b) The Company shall promptly notify the Holders of Registrable Shares covered by the Company Registration Statement of any notification with respect to any comments by the SEC with respect to such occurrence of the following events:
(i) when the Registration Statement or Prospectus or any post-effective amendment or supplement thereto or any request by filed with the SEC for the amending or supplementing thereof or for additional information with respect thereto, Commission has become effective:
(ii) of the receipt by the Company of any notification with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of such the Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, Statement;
(iii) the suspension of the Company's filing requirement pursuant to the last paragraph of Section 8(a) above; ------------
(iv) the Company's receipt by the Company of any notification with respect to of the suspension of the qualification of such any Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of Shares covered by the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities Statement for sale in any jurisdiction, at the earliest practicable moment;; and
(viv) use its best efforts to register and qualify the securities covered by such existence of any event, fact or circumstance that results in the Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested or prospectus relating to Registrable Shares or any document incorporated therein by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes reference containing an untrue statement of a material fact or omits omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading in during the light distribution of securities. The Company agrees to use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any such registration statement or any state qualification at the earliest possible moment.
(c) The Company shall provide to the Holders of Registrable Shares covered by the Registration Statement, at no cost to such Holders, a copy of the circumstances then existingRegistration Statement and any amendment thereto used to effect the Registration of the Registrable Shares, each prospectus contained in such registration statement or post-effective amendment and promptly prepare, file any amendment or supplement thereto and such other documents as the requesting Holders may reasonably request in order to facilitate the disposition of the Registrable Shares covered by such registration statement. The Company consents to the use of each such prospectus and any supplement thereto by the Holders in connection with the SEC offering and furnish sale of the Registrable Shares covered by such registration statement or any amendment thereto. The Company shall also file a sufficient number of copies of the prospectus and any post-effective amendment or supplement thereto with the NYSE (or, if the Common Stock is no longer listed thereon, with such other securities exchange or market on which the Common Stock is then listed) so as to each Holder enable the Holders to have the benefits of the prospectus delivery provisions of Rule 153 under the Securities Act.
(d) The Company agrees to use its reasonable best efforts to cause the Registrable Shares covered by a supplement registration statement to be registered with or an amendment of approved by such Prospectus state securities authorities as may be necessary so to enable the Holders to consummate the disposition of such shares pursuant to the plan of distribution set forth in the registration statement; provided, however, that such Prospectus the Company shall not include be obligated to take any action to effect any such Registration, qualification or compliance pursuant to this Section 8 in any particular jurisdiction in which the Company would be required --------- to execute a general consent to service of process in effecting such Registration, qualification or compliance unless the Company is already subject to service in such jurisdiction.
(e) Subject to the Company's suspension right provided in the last paragraph of Section 8(a) of this Agreement, if any event, fact or circumstance ------------ requiring an amendment to a registration statement relating to the Registrable Shares or supplement to a prospectus relating to the Registrable Shares shall exist, immediately upon becoming aware thereof the Company agrees to notify the Holders and prepare and furnish to the Holders a post-effective amendment to the registration statement or supplement to the prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares, the prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;misleading.
(viiif) The Company agrees to use its reasonable best efforts (including the payment of any listing fees) to list such obtain the listing of all Registrable Securities Shares covered by the registration statement on each securities exchange on which securities of the Ordinary Shares (including American depositary shares representing the Ordinary Shares) same class are then listed; and.
(ixg) The Company agrees to use its reasonable best efforts to comply with the Securities Act and the Exchange Act in connection with the offer and sale of Registrable Shares pursuant to a registration statement, and, as soon as reasonably practicable following the end of any fiscal year during which a registration statement effecting a Registration of the Registrable Shares shall have been effective, to make available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act.
(h) The Company agrees to cooperate with each Holder and the Depositary selling Holders to facilitate the timely preparation and delivery of ADSs (in book entry or certificated form) certificates representing Registrable Shares to be delivered to a transferee sold pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary and not bearing any Securities Act legend; and enable certificates for such Registrable Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered issued for such numbers of shares and registered in such names as the Holders may reasonably request at least two business days prior to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such sale of Registrable Securities without legend upon sale by the Investor under the Registration StatementShares.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Investment Agreement (United Dominion Realty Trust Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering covering, among other things, the resale of all or such portion (as permitted by SEC Guidance and Rule 415) of the Registrable Securities for on such Filing Date that are not then registered on an offering to be made on a continuous basis pursuant to Rule 415effective Registration Statement. Such The Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available S-1 and shall contain substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the Companyterms of this Agreement, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its commercially reasonable best efforts (i) to cause such a Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible practicable after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold sold, or (y) the date on which the Registrable Securities may be sold without any restriction volume restrictions pursuant to Rule 144 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the Holder (the “Effective Effectiveness Period”). Such .
(b) If: (i) the Initial Registration Statement shall is not include any Ordinary Shares filed on or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16to its Filing Date, if the SEC informs or (ii) the Company that all of fails to file with the Registrable Securities cannot, as Commission a result of the application of request for acceleration in accordance with Rule 415 461 promulgated under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number within five Trading Days of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed notified (orally or in writing, whichever is earlier) by the Commission that the Initial Registration Statement will not be “reviewed” or not be subject to further review, or (iii) the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such New Initial Registration Statement within 30 Trading Days after the receipt of comments by or Additional notice from the Commission that such amendment is required in order for such Initial Registration Statement to be declared effective, or (iv) after the Effectiveness Date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holder is otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than 10 consecutive calendar days or more than an aggregate of 20 calendar days during any 12-month period (which need not be consecutive calendar days) (any such failure or breach being referred to as an “Event”, and for purposes of clause (i), the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clause (iii) the date which such 20 Trading Day period is exceeded, or for purposes of clause, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holder may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the SEC applicable Event is cured, the Company shall pay to the Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to $2,500 per month (not to exceed an aggregate of $20,000), pro-rated for periods of less than 30 days. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or Commission Guidancesuch lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(bc) Subject to The Company shall notify the requirements Holder of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made and which notice shall be made by public dissemination of information by filing a Report on 8-K or otherwise) as expeditiously promptly as possible:
reasonably possible (iand, in the case of (i)(A) prepare below, not less than one Trading Day prior to such filing) and file with (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the SEC day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement with respect is proposed to such Registrable Securities and use its best efforts to cause be filed; (B) when the Commission notifies the Company whether there will be a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all “review” of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and whenever the Prospectus used Commission comments in connection with writing on such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period Statement; and to comply with the provisions of the Securities Act and the Exchange Act (C) with respect to a Registration Statement or any post-effective amendment, when the disposition same has become effective; (ii) of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled any request by the public filing of such Prospectus on ▇▇▇▇▇, including Commission or any other Federal or state governmental authority for amendments or supplements to a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, information; (iiiii) of the receipt by the Company of any notification with respect to the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of such a Registration Statement covering any or Prospectus or any amendment or supplement thereto all of the Registrable Securities or the initiation or threatening of any proceeding Proceedings for that purpose, ; (iiiiv) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) qualification of any of the Registrable Securities for sale in any jurisdiction, at or the earliest practicable moment;
initiation or threatening of any Proceeding for such purpose; (viv) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as a result of whichthe case may be, the Prospectus includes an it will not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existingunder which they were made, not misleading; and promptly prepare(vi) the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, file with in the SEC determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that any and furnish to each Holder a supplement to or an amendment all of such Prospectus as may be necessary so that information shall remain confidential to the Holder until such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make information otherwise becomes public, unless disclosure by the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if is required by law; provided, further, that notwithstanding the CompanyHolder’s agent which maintains the register of members of Ordinary Shares or the Depositaryagreement to keep such information confidential, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to Holder makes no acknowledgement that any such agent or the Depositaryinformation is material, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementnon-public information.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The On or prior to the Filing Date the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a "shelf" Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 SB-2 (or, except if Form F-3 the Company is not then available eligible to the Company, on such form of Registration Statement as is then available to effect a registration register for resale of the Registrable SecuritiesSecurities on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and those securities on Schedule 7(c) hereto, (ii) use its best efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filingincluding filing with the Commission a request for acceleration of effectiveness in accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement will not be "reviewed," or not be subject to further review) as promptly soon as possible after the filing thereof, and shall respond but in any event prior to any comments received from the SEC within ten (10) Business DaysEffectiveness Date, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 144(k) as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent to such effect (the “Effective "Effectiveness Period”"). Such If an additional Registration Statement shall not include is required, for any Ordinary reason, to be filed because the actual number of shares of Common Shares or other securities for and Warrant Shares exceeds the account number of any other holder without the prior written consent shares of Investor. Notwithstanding the registration obligations set forth Common Stock initially registered in this Section 8.16, if the SEC informs the Company that all respect of the Registrable Securities cannot, as a result of Common Shares and the application of Rule 415 under Warrant Shares based upon the Securities Act, be registered for resale as a secondary offering computation on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementClosing Date, the Company shall be obligated have twenty (20) Business Days to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New file such additional Registration Statement, as the case may be, under clauses (i) or (ii) above, and the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale declared effective by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriterCommission as soon as possible, but in the no event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunderlater than thirty (30) days after filing.
Appears in 1 contract
Sources: Registration Rights Agreement (Virtual Communities Inc/De/)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for not already covered by an offering existing and effective Registration Statement to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-1 (or, if Form F-3 is not then or such other appropriate form as shall be available to the Company, on Company for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form of attached hereto as Annex A. The Company shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective under the Securities Act as soon as reasonably possible, and shall, subject Section 7(c) hereof, use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of (i) the date that is then available one year after the Closing Date and (ii) the date on which all securities under such Registration Statement have ceased to effect a registration be Registrable Securities (the “Effectiveness Period”), so long as the Company has not been advised by the SEC that it is unable to register the Registrable Shares for resale under Rule 415. Notwithstanding the foregoing, the Company shall be entitled to suspend the effectiveness of the Registration Statement at any time prior to the expiration of the Effectiveness Period for up to an aggregate of 60 consecutive Trading Days or an aggregate of 90 Trading Days (which need not be consecutive) in any given 360-day period. It is agreed and understood that the Company may, from time to time, be obligated to file one or more additional Registration Statements to cover any Registrable Securities that are not registered for resale pursuant to a pre-existing Registration Statement.
(b) Notwithstanding anything contained herein to the contrary, in the event that the Commission limits the amount of Registrable Securities that may be included and sold by Holders in any Registration Statement, including the Initial Registration Statement, pursuant to Rule 415 or any other basis, the Company may reduce the number of Registrable Securities included in such Registration Statement on behalf of the Holders in whole or in part (in case of an exclusion as to a portion of such Registrable Securities, such portion shall be allocated pro rata among such Holders in proportion to the respective numbers of Registrable Securities represented by Shares requested to be registered by each such Holder over the total amount of Registrable Securities represented by Shares (such Registrable Securities, the “Reduction Securities”)). In such event the Company shall give the Holders prompt notice of the number of such Reduction Securities excluded and the Company will not be liable for any damages under this Agreement in connection with the exclusion of such Reduction Securities. The Company shall use its best commercially reasonable efforts at the first opportunity that is permitted by the Commission to register for resale the Reduction Securities. Such new Registration Statement shall be on Form S-1 (ior such other appropriate form as shall be available to the Company for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its commercially reasonable efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofreasonably possible, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (xentire Effectiveness Period, subject to Section 7(c) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investorhereof. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementforegoing, the Company shall be obligated entitled to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending suspend the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end expiration of the Effective Period, upon discovery that, or upon the happening Effectiveness Period for an aggregate of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to no more than 60 consecutive Trading Days or an amendment aggregate of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
90 Trading Days (viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall need not be relieved of consecutive) in any obligations it has hereundergiven 360-day period.
Appears in 1 contract
Sources: Registration Rights Agreement (World Surveillance Group Inc.)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in the form attached hereto as Annex A. The Company shall cause each Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its best efforts to keep each Registration Statement continuously effective under the Securities Act until the fifth year after the date that the Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company, on such form of Registration Statement as is then available to effect a registration ’s transfer agent and the affected Holders (the “Effectiveness Period”).
(b) If for resale any reason the Commission does not permit all of the Registrable SecuritiesSecurities to be included in the Registration Statement filed pursuant to Section 2(a) or for any other reason all Registrable Securities then outstanding are not then included in an effective Registration Statement, then the Company shall prepare and file as soon as reasonably possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, but in any event by the Filing Date therefore, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its best efforts (i) to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days (which need not be consecutive) during any 18-month period (the parties understand that any unused days in accordance with a particular period may not be carried forward to any publicly-available written subsequent period) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an “Event,” and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 20 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Notes pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Notes pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on any portion of a month prior to the Registration Statementcure of an Event, except in the case of the first Event Date.
(d) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least seven Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Company agrees to promptly Securities Act during the entire Effectiveness Period.
(d) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "EVENT," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as "EVENT Date"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and month prior to the cure of an Additional Registration Statement shall be Event, except in the tenth (10th) day after case of the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidancefirst Event Date.
(be) Subject Each Holder agrees to furnish to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading completed Questionnaire in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish form attached to each Holder this Agreement as Annex B (a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends"SELLING HOLDER QUESTIONNAIRE"). In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Bluebook International Holding Co)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) two years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, the Company agrees by its Effectiveness Date, and shall use its reasonable best efforts to promptly keep such Registration
(d) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by the SEC and/or (iiSection 3(a) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementhereof, the Company shall not be obligated deemed to use have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its best efforts to advocate with the SEC required Effectiveness Date, or (iii) after its Effective Date, without regard for the registration of reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all of the Registrable Securities in accordance with to which it is required to cover at any publicly-available written time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day period is exceeded, being referred to as "Event Date"), then in addition to any other rights the Holders may have under the Transaction Date or under applicable law or at equity: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares at closing pursuant to the Loan Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Notes at Closing pursuant to the Loan Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 10% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and month prior to the cure of an Additional Registration Statement shall be Event, except in the tenth (10th) day after case of the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidancefirst Event Date.
(be) Subject Each Holder agrees to furnish to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading completed Questionnaire in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish form attached to each this Agreement as Annex B (a "Selling Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legendsQuestionnaire"). In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (Integrated Security Systems Inc)
Registration. (a) The On or prior to the Filing Date the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement on an appropriate form covering the resale of all the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company shall use its best reasonable commercial efforts (i) to cause such the Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and . The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such the Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities covered by such Registration Statement have been sold or (yii) the date on which the all Registrable Securities may be sold immediately without any restriction registration under the Securities Act pursuant to Rule 144 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed to the Company's transfer agent and the affected Holders (the “Effective "Effectiveness Period”"). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep If the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect is not filed on or prior to the disposition of all securities covered by such Registration Statement;
(iii) furnish Filing Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a Prospectus (which requirement may be fulfilled by the public filing penalty, equal to 1% of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements Purchaser's purchase price of the Securities Act, and such other documents as Company Common Stock. If the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement is not filed on or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to 30 calendar days from the end date of this Agreement (such failure or breach being referred to as an "Event," and the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which such Event occurs, being referred to as "Event Date"), then until the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 4% of such Purchaser's purchase price of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to Company Common Stock for such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositarythirty (30) day period (prorated for partial period), which authorize and direct liquidated damage amount shall increase to 5% for each subsequent 30 day period (prorated for partial periods). While such agent or the Depositary to issue Event continues, such Registrable Securities without legend upon sale by the Investor under the Registration Statementliquidated damages shall be paid not less often than each thirty (30) days.
(c) The Company understands that each Holder disclaims being an underwriter, but in Within five (5) business days of the event any Holder is deemed an underwriterEffectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Schedule A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
Appears in 1 contract
Sources: Registration Rights Agreement (Eagle Broadband Inc)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for not already covered by an offering existing and effective Registration Statement to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date for such Registration Statement, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date on which all securities under such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). It is agreed and understood that the Company shall, from time to time, be obligated to file one or more additional Registration Statements to cover any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement.
(b) Notwithstanding anything contained herein to the Companycontrary, in the event that the Commission limits the amount of Registrable Securities that may be included and sold by Holders in any Registration Statement, including the Initial Registration Statement, the Company may reduce the number of Registrable Securities included in such Registration Statement on behalf of the Holders in whole or in part (in case of an exclusion as to a portion of such Registrable Securities, such portion shall be allocated pro rata among all holders of securities covered by such Registration Statement, which may include Persons who are not Holders party to this Agreement or the Loan Agreement, as amended through the date hereof, in proportion to the respective numbers of securities to be registered by each such Person over the total amount of securities to be registered on such form Registration Statement) (the amount of Registration Statement as is then available to effect a registration for resale such excluded Registrable Securities, the “Reduction Securities”). In such event the Company shall give the Holders prompt written notice of the Registrable Securities)number of such Reduction Securities excluded. The Company shall use its reasonable best efforts at the first opportunity that is permitted by the Commission to register for resale the Reduction Securities. Such new Registration Statement shall be on Form S-3 (iexcept if the Company is not then eligible to register for resale the Reduction Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after but, in any event, no later than the filing thereofEffectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective entire Effectiveness Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Registration. (a) The Company shall, Parent shall use commercially reasonable efforts to (i) maintain its eligibility to use Form S-3 or any successor registration form under the Securities Act as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and file with subsequently may be adopted by the SEC a Registration Statement covering and (ii) file all reports required for the resale availability of all Registrable Securities an exemption for an offering to be made on a continuous basis pursuant to the sale of Parent Common Stock under Rule 415144. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities). The Company Parent shall use its best commercial efforts (i1) to cause such Registration Statement to be declared effective by the SEC under the Securities Act within ninety (unless it becomes effective automatically upon filing90) as promptly as possible days after the filing thereofClosing Date, and shall respond at its expense to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(iA) prepare and file with the SEC a Registration Statement registration statement on Form S-3 pursuant to Rule 415 under the Securities Act with respect to such Registrable Securities resales of the shares of Parent Common Stock issued pursuant to this Agreement (the “Registration Statement”) and use its best efforts (B) to cause a the Registration Statement that registers such Registrable Securities to become effectiveeffective as soon as possible after filing (and in any event within such 90-day period) and (2) to maintain the effectiveness of the Registration Statement until the earlier of (x) the Seller’s disposition of all such registered shares or (y) the Seller being able to dispose of all such registered shares pursuant to Rule 144(k). If Parent does not file the Registration Statement within thirty (30) days after the Closing Date, Parent shall thereupon pay Seller a fee of $25,000 in consideration of its loss of anticipated liquidity and shall pay Seller an additional $25,000 for each thirty-day period thereafter that the Registration Statement remains unfiled; provided, however, that such payment obligation shall be waived if the Registration Statement is declared effective within ninety (90) days after the Closing Date. Parent shall bear all of its expenses incurred in connection with the registration and qualification of the shares registered pursuant to this Section 4.14 and up to $5,000 of expenses reasonably incurred by the Seller therewith, and keep such Registration Statement effective until the Seller shall pay all other fees and expenses incurred by it. The Seller shall cooperate with Parent in the preparation, filing and process of securing the effectiveness of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with shall furnish to Parent such Registration Statement information relating to it and such further and supplemental information as may be necessary to keep or as may be reasonably requested by Parent for use in the Registration Statement effective for and any amendments or supplements thereto. Parent will advise the Effective Period and to comply with the provisions Seller of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) of the issuance of any stop order with respect to the effectiveness thereof, of the suspension of the qualification (or exemption from qualification) of any of the Registrable Securities Parent Common Stock for offering or sale in any jurisdiction, at or of the earliest practicable moment;initiation or threat of any proceeding for any such purpose.
(vib) use To the extent permitted by applicable law, Parent will indemnify the Seller, its best efforts to register officers, directors, members, managers, trustees and qualify partners, and each person who controls Seller within the securities covered by such Registration Statement under such other securities Laws meaning of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end Section 15 of the Effective PeriodSecurities Act, upon discovery thatwith respect to any registration effected pursuant this Section 4.14, against all claims, losses, damages and liabilities (or upon the happening actions in respect thereof) arising out of or based on any event as a result of which, the Prospectus includes an untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or omits other document (including any related registration statement, notification or the like) made in such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in the light misleading, or any violation by Parent of the circumstances then existingSecurities Act or the Exchange Act or any rule or regulation thereunder applicable to Parent and relating to action or inaction required of Parent in connection with any such registration, qualification or compliance, and promptly preparewill reimburse Seller, file its officers, directors and partners, for any legal and any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, provided that Parent will not be liable in any such case to the SEC and furnish to each Holder a supplement to extent that any such claim, loss, damage, liability or an amendment expense arises out of such Prospectus as may be necessary so that such Prospectus shall not include or is based on any untrue statement or omission based upon written information furnished to Parent by any the Seller.
(c) To the extent permitted by applicable law, the Seller will indemnify Parent, each of its directors and officers, and each person who controls Parent within the meaning of Section 15 of the Securities Act, against all claims, losses damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact made by the Seller contained in the Registration Statement, or omit any prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated by the Seller therein or necessary to make the statements by the Seller therein not misleading misleading, and will reimburse Parent and its directors, officers, partners, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action; provided, however, that the obligations of Seller hereunder shall be limited to an amount equal to the net proceeds to Seller of securities sold as contemplated herein.
(d) Each party entitled to indemnification under this Section 4.14 (the “Section 4.14 Indemnified Party”) shall give notice to the party required to provide indemnification (the “Section 4.14 Indemnifying Party”) promptly after such Section 4.14 Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Section 4.14 Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Section 4.14 Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Section 4.14 Indemnified Party (whose approval shall not unreasonably be withheld) and the Section 4.14 Indemnified Party may participate in such defense at such party’s expense (unless the Section 4.14 Indemnified Party shall have reasonably concluded that there may exist a material conflict of interest between the Section 4.14 Indemnifying Party and the Section 4.14 Indemnified Party in such action, in which case the fees and expenses of counsel shall be at the expense of the Section 4.14 Indemnifying Party), and provided further that the failure of any Section 4.14 Indemnified Party to give notice as provided herein shall not relieve the Section 4.14 Indemnifying Party of its obligations hereunder except to the extent that the Section 4.14 Indemnifying Party is materially prejudiced thereby. No Section 4.14 Indemnifying Party in the light defense of any such claim or litigation shall, except with the consent of each Section 4.14 Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), consent to entry of any judgment or enter into any settlement that does not release such Section 4.14 Indemnified Party from all liability in respect to such claim or litigation. Each Section 4.14 Indemnified Party shall furnish such information regarding itself or the claim in question and such other support as a Section 4.14 Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.
(e) If the indemnification provided for in this Section 4.14 is held by a court of competent jurisdiction to be unavailable to an Section 4.14 Indemnified Party with respect to any loss, liability, claim, damage or expense referred to herein, then the Section 4.14 Indemnifying Party, in lieu of indemnifying such Section 4.14 Indemnified Party hereunder, shall contribute to the amount paid or payable to such Section 4.14 Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the circumstances then existing;Section 4.14 Indemnifying Party on the one hand and of the Section 4.14 Indemnified Party on the other in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the Section 4.14 Indemnifying Party and of the Section 4.14 Indemnified Party shall be determined by reference to, among other things, whether the untrue (or alleged untrue) statement of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Section 4.14 Indemnifying Party or by the Section 4.14 Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, however, that the obligations of Seller hereunder shall be limited to an amount equal to the net proceeds to Seller of securities sold as contemplated herein.
(viiif) For not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, Parent may delay the disclosure of material non-public information concerning Parent, by suspending the use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares of any prospectus, offering circular or other document (including American depositary shares representing any related registration statement, notification or the Ordinary Shareslike) are then listed; and
(ix) cooperate prepared in connection with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) any registration to be delivered to a transferee effected pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositarythis Section 4.14 containing such information, the Company disclosure of which at the time is not, in the good faith opinion of Parent, in the best interests of Parent (an “Allowed Delay”); provided, that Parent shall promptly after (a) notify the effectiveness Seller in writing of the existence of material non-public information giving rise to an Allowed Delay, (b) advise the Seller in writing to cease all sales under the Registration Statement cause an opinion of legal counsel as to until the effectiveness end of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates Allowed Delay and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being use commercially reasonable efforts to terminate an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunderAllowed Delay as promptly as practicable.
Appears in 1 contract
Registration. (a) The Company shall, as As soon as reasonably practicable, but in no event later than March 31the Filing Date, 2016 (the “Filing Deadline”), Company shall prepare and file with the SEC Commission a Registration Statement on Form S-1 covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its reasonable best efforts (i) to cause the Registration Statement to be declared effective under the Securities Act as soon as practicable but, in any event, no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without volume restrictions pursuant to Rule 144(b)(i) promulgated under the Securities Act (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are not permitted by the Commission to be included on a Registration Statement filed under this Agreement, then the Company shall prepare and file as soon as possible after the date on which the Commission shall indicate as being the first date or time that such filing may be made, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis at the market pursuant to Rule 415 or otherwise as may be acceptable to a Holder whose Registrable Securities were not registered for resale. Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 95% of the then Registrable Securities are then registered on a Registration Statement(s), then the Company shall file as soon as reasonably practicable, but in any event not later than 30 days after less than 95% of the Registrable Securities are then registered on a Registration Statement, subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the resale by the Holders of not less than 100% of the number of then Registrable Securities. The calculation set forth in the foregoing sentence shall be made without regard to any limitation on the exercise of the Warrants and such calculation shall assume that the Warrants are then exercisable for shares of Common Stock at the then prevailing applicable Exercise Price (as defined in the Warrants).
(d) If: (i) a Registration Statement covering all of the Registrable Securities required to be covered thereby is not filed by the Company with the Commission on or prior to the Filing Date (or the applicable filing date if the Registration Statement is not the initial Registration Statement required to be filed under Section 2(a)), (ii) a Registration Statement covering all of the Registrable Securities is not declared effective by the Commission on or prior to its required Effectiveness Date (it being understood that if the Company shall not have filed a “final” prospectus for the Registration Statement with the SEC under Rule 424(b) in accordance with Section 2(g) below (whether or not such a prospectus is technically required by such rule), the Company shall not be deemed to have satisfied this clause (ii)), (iii) the Company fails to file a request for the acceleration of the Effectiveness Date of the applicable Registration Statement as required by Section 3(c), (iv) there is a suspension or delisting of the earlier Company’s Common Stock (or the Company fails to timely list all the Registrable Securities) on its principal trading market or exchange, (v) after its Effective Date, other than during an Allowable Grace Period (as defined below), such Registration Statement ceases to be effective and available for use by the Holders as to any Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for up to no more than 3 consecutive Trading Days (xor 20 Trading Days in any 12 month period in the aggregate) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i)-(iv), on the date on which all Registrable Securities covered by such Registration Statement have been sold Event occurs, or for purposes of clause (y) v), the date on which the Allowable Grace Period or other specified period is exceeded, being referred to as “Event Date”), then, in addition to any other rights available to the Holders under this Agreement or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement; and (y) on each 30-day anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial damages pursuant to the terms hereof shall apply on a pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding the foregoing, in no event shall the partial damages under this Section 2(d) exceed an amount equal to 20% of the aggregate Investment Amounts.
(e) Notwithstanding anything to the contrary contained in this Agreement, in the event the staff of the Commission (the “Staff”) or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Purchase Agreement and in the event of any reduction pursuant to this paragraph, no Holder shall have any claim against the Company as a result of such reduction and any Event or other delay or breach of this Agreement occurring primarily due to such action by the Staff or the Commission and any such relating reduction shall not require the Company to pay any partial damages pursuant to Section 2(d) hereof or otherwise provide the basis for any claim by any Holder against the Company pursuant to the Transaction Documents (it being understood that the foregoing does not constitute a waiver of Section 3.2(f) of the Securities Purchase Agreement by any Holder or the obligations of the Company under this paragraph and elsewhere in relation thereto). In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be sold resold by such Holder without any restriction (including volume limitations) pursuant to Rule 144 144(b)(i) of the Securities Act (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the taking account of any other holder without Staff position with respect to “affiliate” status) or (iii) the prior written consent Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Investor. Notwithstanding Registrable Securities in order to permit the re-sale thereof by such Holder as contemplated above).
(f) In the event that Form S-1 is not available for the registration obligations set forth in this Section 8.16of the resale of Registrable Securities hereunder, if the SEC informs the Company that all shall use reasonable best efforts to (i) register the resale of the Registrable Securities cannoton another appropriate form reasonably acceptable to the Holders and (ii) undertake to register the Registrable Securities on Form S-1 as soon as such form is available, provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement then in effect until such time as a result of Registration Statement on Form S-1 covering the application of Rule 415 under Registrable Securities has been declared effective by the Commission. In the event the Company becomes eligible to register the Registrable Securities Act, be registered for resale as a secondary offering on a single registration statementForm S-3, the Company agrees to promptly (i) inform each Holder and shall use its reasonable best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to promptly register for resale the Registrable Securities on Form S-3, provided that the Company shall use reasonable best efforts to maintain the effectiveness of the Registration Statement(s) then in effect until such time as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(g) By 5:30 p.m. on the Trading Day immediately following the Effective Date of each Registration Statement, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written or oral guidance, comments, requirements or requests of Rule 424 under the SEC’s staff (“Commission Guidance”). In Securities Act the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its best efforts final prospectus to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary sales pursuant to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Health Benefits Direct Corp)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "EFFECTIVENESS PERIOD").
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form SB-2 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of entire Effectiveness Period.
(xc) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities may for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be sold without declared effective as soon as possible thereafter, but in any restriction pursuant event prior to Rule 144 (the “Effective Period”)Effectiveness Date therefor. Such Registration Statement shall not include any Ordinary Shares or other securities for contain (except if otherwise required pursuant to written comments received from the account Commission upon a review of any other holder without such Registration Statement) the prior written consent "Plan of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Distribution" attached hereto as Annex A. The Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 shall cause such Registration Statement to be declared effective under the Securities ActAct as soon as possible but, be registered for resale as a secondary offering on a single registration statementin any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Company agrees to promptly Securities Act during the entire Effectiveness Period.
(d) If: (i) inform each Holder and use its best efforts to file amendments to the a Registration Statement as required by the SEC and/or is not filed on or prior to its Filing Date, or (ii) withdraw the a Registration Statement and file a new is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefore, such Registration Statement (a “New Registration Statement”), in either case covering ceases for any reason to be effective and available to the maximum number of Holders as to all Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available which it is required to register for resale the Registrable Securities as a secondary offering; provided, however, that cover at any time prior to filing the expiration of its Effectiveness Period for more than an aggregate of 45 Trading Days (which need not be consecutive) (any such amendment failure or New Registration Statement, the Company shall be obligated breach being referred to use its best efforts to advocate with the SEC as an "EVENT," and for the registration purposes of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 45 Trading Day-period is exceeded, being referred to as "EVENT DATE"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate Investment Amount paid by such Holder for Securities pursuant to the Purchase Agreement. The parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 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 Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. Notwithstanding the other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes provisions of this AgreementSection 2, the filing deadline of a New Registration Statement and an Additional Registration Statement in no event shall be the tenth (10th) day after the date that the Company is allowed be liable for partial liquidated damages under this Section 2(d) to file any Holder in excess of 10.5% of the Investment Amount paid by such New Registration Statement or Additional Registration Statement, as applicable, by Holder for Securities pursuant to the SEC or Commission GuidancePurchase Agreement.
(be) Subject Each Holder agrees to furnish to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading completed Questionnaire in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish form attached to each Holder this Agreement as Annex B (a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends"SELLING HOLDER QUESTIONNAIRE"). In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the "Effectiveness Period"). If for any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe "Plan of Distribution" attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until such date as is during the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the entire Effectiveness Period. Promptly following any date on which the Registrable Securities may be sold without any restriction pursuant Company becomes eligible to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the use a registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of statement on Form S-3 to register the Registrable Securities cannotfor resale, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), but in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or no event more than ten days after such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statementdate, the Company shall be obligated to use its best efforts to advocate with the SEC for the file a registration of all of statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in accordance with any publicly-available written event prior to the Effectiveness Date therefor.
(b) If: (i) a Registration Statement is not filed on or oral guidance, comments, requirements or requests of the SEC’s staff prior to its Filing Date (“Commission Guidance”). In the event if the Company amends the files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or files (ii) a New Registration StatementStatement is not declared effective by the Commission on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefore, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the case may be, under expiration of its Effectiveness Period for more than an aggregate of 45 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an "Event," and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 45 Trading Day-period is exceeded, being referred to as "Event Date"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 pay interest thereon at a rate of 12% per annum (or such other forms available lesser maximum amount that is permitted to register be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline any portion of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time month prior to the end cure of an Event, except in the case of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementfirst Event Date.
(c) The Each Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a "Selling Holder is deemed an underwriter, the Questionnaire"). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (International Displayworks Inc)
Registration. (a) The On or prior to the Filing Date the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. Such The Registration Statement shall be on Form F-3 S-3 (or, except if Form F-3 the Company is not then available eligible to register for resale the CompanyRegistrable Securities on Form S-3, in which case such registration shall be on such another appropriate form of in accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as is then available to effect a registration for resale of the Registrable Securities)provided herein. The Company shall use its best reasonable commercial efforts (i) to cause such each Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and but in any event no later than the Effectiveness Date. The Company shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable commercial efforts to keep such each Registration Statement continuously effective under the Securities Act until such the date as which is the earlier date of when (xi) the date on which all Registrable Securities have been sold or (ii) all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold immediately without any restriction registration under the Securities Act and without volume restrictions pursuant to Rule 144 144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders (the “Effective "Effectiveness Period”"). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly .
(b) If: (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by is not filed on or prior to the SEC and/or Filing Date; (ii) withdraw the Registration Statement and file a new is not declared effective by the Commission by the Effectiveness Date; (iii) after the Registration Statement is filed with and declared effective by the Commission, the Registration Statement ceases to be effective (a “New Registration Statement”), in either case covering the maximum number of by suspension or otherwise) as to all Registrable Securities permitted to be registered which it is required to relate at any time prior to the expiration of the Effectiveness Period (without being succeeded immediately by an additional registration statement filed and declared effective) for a period of time which shall exceed 30 days in the SEC, on Form F-3 aggregate per year or such other form available to register for resale the Registrable Securities more than 20 consecutive calendar days (defined as a secondary offeringperiod of 365 days commencing on the date the Registration Statement is declared effective); providedor (iv) the Common Stock is not listed or quoted, however, that prior to filing such amendment or New Registration Statement, is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall be obligated not have been able to use its best efforts to advocate with the SEC for the registration of all cure such trading suspension within 30 days of the Registrable Securities in accordance with notice thereof or list the Common Stock on another Trading Market); (any publicly-available written such failure or oral guidance, comments, requirements or requests breach being referred to as an "Event," and for purposes of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Registration Statement or files a New Registration Statement, as the case may be, under clauses clause (i) or (ii) above, the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements date on Form F-3 or which such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amendedEvent occurs, or the New Registration Statement (the “Additional Registration Statements”). For for purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
clause (iii) furnish to each Holder a Prospectus the date which such 30 day or 20 consecutive day period (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor case may reasonably request in order to facilitate the disposition be) is exceeded, or for purposes of the Registrable Securities owned by it that are included in such registration;
clause (iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange date on which such three (3) Trading Day period is exceeded, being referred to as "Event Date"), then until the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositaryapplicable Event is cured, the Company shall promptly after the effectiveness pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2.0% for each thirty (30) day period (prorated for partial periods) on a daily basis of the principal amount of the Note on the date hereof. While such Event continues, such liquidated damages shall be paid not less often than each thirty (30) days. Any unpaid liquidated damages as of the date when an Event has been cured by the Company shall be paid within three (3) days Registration Statement cause an opinion of legal counsel as Rights Agreement following the date on which such Event has been cured by the Company. Notwithstanding anything to the effectiveness contrary set forth herein, the maximum aggregate amount of liquidated damages that may be charged to the Company pursuant to this Section 2(b) shall not exceed in the aggregate the amount equal to 12% of the Registration Statement to be delivered to such agent or initial Principal Amount of the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementNote.
(c) The Company understands that each Holder disclaims being an underwriter, but in Within three business days of the event any Holder is deemed an underwriterEffectiveness Date, the Company shall not cause its counsel to issue a blanket opinion in the form attached hereto as Exhibit A, to the transfer agent stating that the shares are subject to an effective registration statement and can be relieved reissued free of any obligations restrictive legend upon notice of a sale by the Purchaser and confirmation by the Purchaser that it has hereundercomplied with the prospectus delivery requirements, provided that the Company has not advised the transfer agent orally or in writing that the opinion has been withdrawn. Copies of the blanket opinion required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
Appears in 1 contract
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form F-1 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the “Plan of Registration Statement Distribution” attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years after its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders pursuant to Rule 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness Period”). By 5:00 p.m. (New York City time) on the Effective Date, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the initial Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding or then issuable Registrable Securities are not then covered by an effective Registration Statement, then the Company shall prepare and file by the Filing Date for such Registration Statement, an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form F-1 (or on such other form appropriate for such purpose). Each such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC within ten (10Commission upon a review of such Registration Statement) Business Daysthe “Plan of Distribution” attached hereto as Annex A. The Company shall cause each such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and (ii) shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act until during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be obligated used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities for resale, the Company shall file a registration statement on Form S-3 covering the Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the "Plan of Distribution" attached hereto as Annex A. The Company shall cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to advocate keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Effective Date of such Registration Statement, the Company shall file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or oral guidance, comments, requirements not such filing is technically required under such Rule).
(d) If: (i) a Registration Statement is not filed on or requests of the SEC’s staff prior to its Filing Date (“Commission Guidance”). In the event if the Company amends files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with Section 2(a), 2(b) or files a New Registration Statement2(c) herein, as the case may bebe (whether or not such a prospectus is technically required by such Rule), under or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: for each calendar month from the applicable Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement until the applicable Event is cured; provided, however, that no damages shall begin to accrue or be payable by the Company pursuant to this Section 2(d) until after the expiration of the 180th day following the Closing Date. The parties agree that the Company will use its best efforts not be liable for liquidated damages under this Section in respect of the Warrants. In no event will the Company be liable for damages in excess of 1.0% of the aggregate Investment Amount of the Holders in any 30-day period. The partial liquidated damages pursuant to file the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date; provided, that the maximum aggregate liquidated damages payable to a Holder under this Section 2(d), when aggregated with any liquidated damages payable pursuant to Section 4.15 of the SECPurchase Agreement, shall not exceed ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement Annex B (the a “Additional Registration StatementsSelling Holder Questionnaire”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(d) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (China Security & Surveillance Technology, Inc.)
Registration. (a) The On or prior to each Filing Date, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), shall prepare and file with the SEC Commission a Registration Statement covering the resale spin-off of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, on Form S-1 (or on such other form appropriate for such purpose). Such Registration Statement shall be on Form F-3 contain (or, except if Form F-3 is not then available otherwise required pursuant to written comments received from the Company, on Commission upon a review of such form Registration Statement) the "Plan of Registration Statement Distribution" attached hereto as is then available to effect a registration for resale of the Registrable Securities). Annex A. The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly soon as possible after the filing thereofbut, in any event, no later than its Effectiveness Date, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act until such date time as is all of the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been publicly sold or (y) by the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 Holder (the “Effective "Effectiveness Period”"). Such Registration Statement shall not include any Ordinary Shares or other securities for By 5:00 p.m. (Denver time) on the account of any other holder without Trading Day following the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration StatementEffective Date, the Company shall be obligated to use its best efforts to advocate file with the SEC for the registration of all of the Registrable Securities Commission in accordance with any publicly-available written Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or oral guidance, comments, requirements not such filing is technically required under such Rule).
(b) If: (i) a Registration Statement is not filed on or requests of the SEC’s staff prior to its Filing Date (“Commission Guidance”). In the event if the Company amends files a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with Section 2(a) or files a New Registration Statement2(b) herein, as the case may bebe (whether or not such a prospectus is technically required by such Rule), under or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) abovethe date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law or in equity, on such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured the Company shall pay to Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% of the aggregate Investment Amount paid by Holder for Shares pursuant to the Purchase Agreement. The parties agree that (1) the Company will use its best efforts to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register not be liable for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (the “Additional Registration Statements”). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to the requirements of Section 8.16(a) regarding the Filing Deadline, whenever required to effect the registration of any Registrable Securities liquidated damages under this Agreement, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to keep the Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification Agreement with respect to any comments by Warrants or Warrant Shares and (2) in no event will the SEC with respect Company be liable for liquidated damages under this Agreement in excess of 2.0% of the aggregate Investment Amount of the Holder in any single month, and (3) the maximum aggregate liquidated damages payable to such Registration Statement or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, a Holder under this Agreement shall be ten percent (ii10%) of the receipt aggregate Investment Amount paid by the Company of any notification with respect Holder pursuant to the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect Purchase Agreement. The partial liquidated damages pursuant to the suspension terms hereof shall apply on a daily pro-rata basis for any portion of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time a month prior to the end cure of an Event, except in the case of the Effective Period, upon discovery that, or upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that such Prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(viii) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an opinion of legal counsel as to the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statementfirst Event Date.
(c) The Holder agrees to furnish to the Company understands that each Holder disclaims being an underwriter, but a completed Questionnaire in the event any form attached to this Agreement as Annex B (a “Selling Holder is deemed an underwriter, the Questionnaire”). The Company shall not be relieved required to include the Registrable Securities of a Holder in a Registration Statement until such Holder has provided the Company with a fully completed Selling Holder Questionnaire and shall not be required to pay any obligations it has hereunderliquidated or other damages under Section 2(c) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
Appears in 1 contract
Registration. (a) The Subject to the conditions set forth in this Agreement, the Company shall, as soon as practicable, but in no event later than March 31, 2016 (the “Filing Deadline”), prepare and will file with the SEC Securities and Exchange Commission (the "SEC") a registration statement on Form S-3 (the "Issuance Registration Statement covering Statement") under Rule 415 of the resale Securities Act relating to the issuance to the Holders of all Registrable Securities the Shares in exchange for an offering Units acquired pursuant to the Contribution Agreement, such filing to be made on a continuous basis date (the "Filing Date") which is no earlier than two weeks before the expiration of the Lock-Up Period and no later than the date of the expiration of the Lock-Up Period; provided, however that notwithstanding the foregoing, the Filing Date may be such other date as may be required under applicable provisions of the Securities Act or as required by the SEC pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to its interpretation of applicable federal securities laws and the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities)rules and regulations promulgated thereunder. The Company shall use its best efforts (i) to cause such the Issuance Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Effective Period”). Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, if the SEC informs the Company that all of the Registrable Securities cannot, Shares covered thereby as a result of the application of Rule 415 under the Securities Act, be registered for resale soon as a secondary offering on a single registration statement, the practicable thereafter. The Company agrees to promptly (i) inform each Holder and use its best efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its best efforts to advocate with keep the SEC for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). In the event the Company amends the Issuance Registration Statement continuously effective until the date on which each Holder has tendered its Units for redemption and the redemption price therefor (whether paid in cash or files a New Registration Statement, as the case may be, under clauses (iin Common Stock) or (ii) above, the Company will use its best efforts has been delivered to file with the SEC, as promptly as allowed by the SEC or Commission Guidance, one or more Registration Statements on Form F-3 or such other forms available to register for resale those Registrable Securities that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement each Holder (the “Additional "Issuance Registration Statements”Expiration Date"). For purposes of this Agreement, the filing deadline of a New Registration Statement and an Additional Registration Statement shall be the tenth (10th) day after the date that the Company is allowed to file such New Registration Statement or Additional Registration Statement, as applicable, by the SEC or Commission Guidance.
(b) Subject to In the requirements of Section 8.16(a) regarding the Filing Deadlineevent that, whenever required to effect the registration of for any Registrable Securities under this Agreementreason, the Company shalldetermines that it is unable to cause an Issuance Registration Statement to be declared effective by the SEC within ninety (90) days following the Filing Date or (except as otherwise permitted by Sections 8 and 9) is unable or it is impracticable to keep such Issuance Registration Statement continuously effective until the Issuance Registration Expiration Date, as expeditiously as possible:
(i) prepare and the Company shall promptly file with the SEC a Registration Statement with respect on Form S-3 (a "Resale Shelf Registration Statement") under Rule 415 under the Securities Act relating to such the resale by the Holders of their Registrable Securities and Shares. The Company shall use its best efforts to cause such Resale Shelf Registration Statement to be declared effective by the SEC as soon as practicable thereafter. The Company agrees to use its best efforts to keep the Resale Shelf Registration Statement, after its date of effectiveness, continuously effective until the date (the "Resale Shelf Registration Expiration Date") on which all Registrable Shares have been disposed of by the Holders. After the Company has filed the Resale Shelf Registration Statement, any obligation of the Company to file an Issuance Registration Statement pursuant to Section 2(a) above with respect to the Registrable Shares registered by the Resale Shelf Registration Statement shall be suspended for as long as the Resale Shelf Registration Statement remains effective.
(c) The Company shall promptly notify each Holder of the effectiveness of a Registration Statement that registers and shall furnish to each Holder such Registrable Securities to become effective, and keep such number of copies of a Registration Statement effective until all as each Holder may reasonably request (including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus), any documents incorporated by reference in a Registration Statement and such other documents as each Holder may reasonably request in order to facilitate its sale of the Registrable Securities have been disposed of;Shares in the manner described in the Resale Registration Statement.
(iid) The Company shall promptly prepare and file with the SEC from time to time such amendments and supplements to such a Registration Statement and the Prospectus prospectus used in connection with such Registration Statement therewith as may be necessary to keep the such Registration Statement effective for the Effective Period and to comply with the provisions of the Securities Act and the Exchange Act with respect to the issuance or disposition of all securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in Shares until the earlier of (a) such registration;
(iv) notify each Holder and its counsel in writing (i) time as all of the receipt Common Stock to be issued upon redemption or exchange for Units have been issued pursuant to the Issuance Registration Statement or, in the event a Resale Registration Statement has been filed in accordance with Section 2(b) hereof, all of the Registrable Shares have been disposed of in accordance with the intended methods of disposition by the Holders as set forth in the Resale Registration Statement or (b) the date on which the Registration Statement ceases to be effective in accordance with the terms of this Section 2. Upon five (5) business days' notice, the Company of shall file any notification with respect supplement or post-effective amendment to any comments by the SEC Resale Registration Statement with respect to such Holder's interests in or plan of distribution of Registrable Shares that is reasonably necessary to permit the sale of the Holder's Registrable Shares pursuant to the Resale Registration Statement Statement. The Company shall file any necessary listing applications or Prospectus amendments to the existing applications to cause the Shares to be listed or any amendment quoted on the primary exchange or supplement thereto quotation system on which the Common Stock is then listed or quoted.
(e) The Company shall promptly notify each Holder of, and confirm in writing, any request by the SEC for amendments or supplements to a Registration Statement or the amending or supplementing thereof prospectus related thereto or for additional information with respect theretoinformation. In addition, (ii) of the receipt by the Company shall promptly notify each Holder of, and confirm in writing, the filing of a Registration Statement, any notification with respect prospectus supplement related thereto or any post-effective amendment to the issuance by the SEC of any stop order suspending such Registration Statement and the effectiveness of such Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes, and (iv) of the existence of any fact or the happening of any event that causes the Company to become an “ineligible issuer,” as defined in Rule 405;post-effective amendment.
(vf) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as The Company shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, Holder at any time prior when a prospectus relating to the end Resale Registration Statement is required to be delivered under the Securities Act, of the Effective Period, upon discovery that, or upon the happening of any event as a result of whichwhich the prospectus included in a Registration Statement, the Prospectus as then in effect, includes an untrue statement of a material fact or omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existingunder which they were made, and not misleading. In such event, the Company shall promptly prepare, file with the SEC prepare and furnish to each Holder a reasonable number of copies of a supplement to or an amendment of such Prospectus prospectus as may be necessary so that that, as thereafter delivered to the purchasers of Registrable Shares, such Prospectus prospectus shall not include any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading therein, in the light of the circumstances then existing;under which they are made, not misleading.
(viiig) use its best efforts to list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to If requested by a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the DepositaryHolder, the Company shall promptly after the effectiveness of the within a reasonable time before filing a Resale Registration Statement cause an opinion or prospectus or amendments or supplements thereto with the SEC furnish to counsel selected by the Holder copies of legal counsel as such documents proposed to be filed.
(h) The Company shall during the effectiveness of period when the Registration Statement prospectus is required to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration StatementSecurities Act timely file all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended.
(c) The Company understands that each Holder disclaims being an underwriter, but in the event any Holder is deemed an underwriter, the Company shall not be relieved of any obligations it has hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Reckson Operating Partnership Lp)