Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
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) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement (i) 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, in which case such registration shall be on another appropriate form for such purpose). ) and, if the Company is a WKSI as of the 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 commercially 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 or otherwise 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 become effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness Date, and shall use its commercially reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act during its entire until the registration rights under this Agreement terminate in accordance with Section 2(b) (the “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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof”). In addition, the Company shall shall, promptly and from time to time, file such additional Registration Statements to cover resales of any Registrable Securities which are not be deemed registered for resale pursuant to have satisfied this clause (i)), or (ii) a pre-existing Registration Statement is not 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 or otherwise to become effective under the Commission on or prior to its required Securities Act as soon as practicable after the applicable Filing Date but, in any event, no later than the applicable Effectiveness Date, or (iii) after and shall use its Effective Date, without regard for commercially reasonable efforts to keep the reason thereunder or efforts therefor other than a Suspension Event Registration Statement continuously effective under the Securities Act at all times during the Effectiveness Period. Notwithstanding anything to the contrary in compliance with this Section 6(c2(a), such Registration Statement ceases for any reason to be effective and available upon notice to the Purchaser as to all Registrable Securities to Holders, the Company may suspend the use or the effectiveness of the Registration Statement, or extend the time period in which it is required to cover at any time prior to file the expiration of its Effectiveness PeriodRegistration Statement, for an aggregate up to 30 days in the aggregate, in any 12-month period (a “Suspension Period”) if the Board of 20 Trading Days Directors of the Company determines that there is a valid business purpose for all such events (any such failure or breach being suspension of the 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 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 exceededabove, 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 their use of the affected Prospectus relating to such Registration Statement in connection with any sale or offer to sell 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 annumSecurities. The liquidated damages Company shall promptly notify the Holders when the Registration Statement may once again be due and payable in cash used or through the issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitieseffective.
(db) Registration Statements The registration rights granted under this Section 2 may contain shares other than shall automatically terminate as of the date and time at which all of the Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsare Freely Tradable.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Daegis Inc.), Registration Rights Agreement (Daegis Inc.), Registration Rights Agreement (Unify Corp)
Registration. (a1) On or prior Subject to the Filing terms and conditions of this Agreement, the Company covenants and agrees that as promptly as practicable after the Closing Date (and in any event, (i) for all Registrable Securities other than the Series B Stock, no later than the date that is 30 days after the Closing Date and (ii) for the Series B Stock, if the shares of Series B Stock are still outstanding and “Registrable Securities” pursuant to Section 4.9(k)(4), no later than the date that is 120 days after the Closing Date), the Company shall prepare have prepared and file filed with the Commission a SEC 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 SEC to cover such Registrable Securities not already covered by an existing and effective Securities), and, to the extent the Shelf Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if the Company has not theretofore been declared effective or is not then eligible to register for resale automatically effective upon such filing, 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 the 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 Investors.
(2) Any registration pursuant to this Section 4.9(a) shall be effected by means of a shelf registration under the Securities Act no later than (a “Shelf Registration Statement”) in accordance with the Effectiveness Date, methods and shall use its reasonable best efforts to keep distribution set forth in the Shelf Registration Statement continuously effective under and Rule 415. If the Securities Act until the date which is the earlier Investors or any other holder of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities to whom the registration rights conferred by this Agreement have been publicly sold transferred in compliance with this Agreement intends to distribute any Registrable Securities by means of an underwritten offering it shall promptly so advise the Company 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 Purchaser, or (iii) such time as all holders 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 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 be sold under a registration statement as a result of the 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 the Board of Directors, would make it inappropriate or inadvisable to effect such registration to be 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 such registration to be effected at such time, in which event the Company shall have the right to defer such registration for a 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 registration pursuant 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 proposes to register any of its securities, other than a registration pursuant to Section 4.9(a)(1) or a Special Registration, and the registration form to be filed may be used for the registration or qualification for distribution of Registrable Securities, the Company shall give prompt written notice to the Investors and all other Holders of its intention to 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 Company has received written requests for inclusion therein within ten business days after the 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 such registration.
(5) If the registration referred to in Section 4.9(a)(4) is proposed to be underwritten, the Company shall so advise the Investors and all other Holders as a part of the written notice given pursuant to Section 4.9(a)(4). In such event, the 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 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 (y) a Piggyback Registration under Section 4.9(a)(4) relates to an underwritten primary offering on behalf of the Company, and in either case the managing 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), 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 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 following order 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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) Ifpriority: (i) first, in the case of a Piggyback Registration Statement is not filed on or prior to its Filing Date (if under Section 4.9(a)(4), the securities the Company files a Registration Statement without affording the Purchaser the opportunity proposes to review and comment on the same as required by Section 3(a) hereofsell, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by second, Common Stock and other securities of the Commission on or prior Company issued to its required Effectiveness DateTreasury, or (iii) after its Effective Datethird, without regard for Registrable Securities of the reason thereunder Investors and all other Holders who have requested registration of Registrable Securities pursuant to Sections 4.9(a)(2) or efforts therefor other than a Suspension Event in compliance with Section 6(c4.9(a)(4), as applicable, pro rata on the basis of the aggregate number of such Registration Statement ceases for securities or shares owned by each such person and (iv) fourth, any reason other securities of the Company that have been requested to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodso included, 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 issuance of Additional Notes (as defined in the Note), to 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 subject 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 Underlying Shares that are no longer Registrable SecuritiesAgreement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Investment Agreement (Sterling Financial Corp /Wa/), Investment Agreement (Sterling Financial Corp /Wa/)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the “each, an "Effectiveness Period”").
(b) If for any reason the Commission does not permit all Within three business days 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company shall not be deemed cause its counsel to have satisfied this clause (i))issue a blanket opinion in the form attached hereto as Exhibit A, or (ii) a Registration Statement 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as transfer agent stating that the shares are subject to all Registrable Securities to which it is required to cover at any time prior to the expiration an effective registration statement and can be reissued free of its Effectiveness Period, for an aggregate restrictive legend upon notice 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 a sale by the Purchaser pursuant to and confirmation by the Purchase Agreement from and including Purchaser that it has complied with the Event Date but excluding prospectus delivery requirements, provided that the date on which Company has not advised the Event transfer agent orally or in writing that the opinion has been curedwithdrawn. 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 Copies of the Event Date and shall increase blanket opinion required 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 issuance of Additional Notes (as defined in the Note), to 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pacific Cma Inc), Registration Rights Agreement (Netfabric Holdings, Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. 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, 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 to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the such Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five two years after the Effective Date, (ii) Closing Date or such time as earlier date when all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities 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), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 prior to before its required Effectiveness Date, or (iii) after its Effective Dateduring the Effectiveness Period, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration of its Effectiveness PeriodProspectus therein to resell such Registrable Securities, for in any and all such cases for more than an aggregate of 20 Trading Days for all during such events Effectiveness Period (which need not be consecutive Trading Days) (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day period Days is exceeded, exceeded being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.5% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On To the extent that a Registration Statement filed pursuant to Section 2(b) or prior 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 Filing Datenumber 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 not already covered held by an existing 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 effective conditions specified in this Section 2(b) and shall use its commercially reasonable efforts to cause the Registration Statement for an offering to be made declared effective as soon as practicable after the filing thereof, but in no event later than the 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, 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 “Effectiveness Deadline”). The Registration Statement filed with the Commission pursuant to this Section 2(b) shall be on Form F-3 or 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 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 415415 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. The A Registration Statement filed pursuant to this Section 2(b) shall be on Form S-3 (except if provide for the Company is not then eligible sale or resale pursuant to register for resale any method or combination of methods legally available to, and requested by, the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Investors. 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 a Registration Statement filed pursuant to Section 2(a)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 any other reason any the resale of all the Registrable Securities are not included in 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 under pursuant to 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 madeSection 2(b), but in any event by 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 to qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement on Form ▇-▇, ▇-▇ or any successor form thereto. As soon as practicable after the date hereof, but not later than the Target Filing Date, an additional the Company shall (i) prepare and file with (or confidentially submit to) the Commission a Registration Statement covering on Form ▇-▇, ▇-▇ or the resale of all Registrable Securities not already covered by an existing and effective Registration Statement then appropriate form for an offering to be made on a delayed or 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 415 under the Securities Act as soon as possible but, in or any event, no later than its Effectiveness Date, and shall use its reasonable best efforts successor rule thereto (a “Shelf Registration Statement”) that covers all Registrable Securities then outstanding for an offering to keep such Registration Statement continuously effective be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act during its entire Effectiveness Period.
or any successor rule thereto (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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.Shelf
Appears in 2 contracts
Sources: Registration Rights Agreement (System1, Inc.), Registration Rights Agreement (System1, Inc.)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, 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 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 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 PurchaserHolders, 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 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 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 use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser 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 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 twenty Trading Day period is exceeded, being referred to as “Event Date”), then, for so long 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 such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities paid by the Purchaser aggregate Investment Amount of such Holder pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 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 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 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3SB-2, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, 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 the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the Registrable Securities 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 (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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the Effectiveness Date, or ; (iii) after its Effective Date, without regard for a Registration Statement is filed with and declared effective by the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Commission, such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod (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 the 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 an aggregate a period of 20 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on any of the NASDAQ SmallCap Market, the Nasdaq National Market, or the American Stock Exchange (any the "Trading Market"))(any such failure or breach being referred to as an “"Event,” " and for purposes of clauses clause (i) and ), (ii) or (v) the 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 20 three (3) 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to the terms hereof shall apply 2.0% for each thirty (30) day period (prorated for partial periods) on a pro rata daily basis for any portion of a month prior to the cure of issued and outstanding Preferred Stock. Such liquidation damages shall be paid not less than each thirty (30) days during an Event other than with respect to and within three (3) days following the initial date on which such Event Date thereof. Following has been cured by 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 Underlying Shares that are no longer Registrable SecuritiesCompany.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Laurus Master Fund LTD), Registration Rights Agreement (Cycle Country Accessories Corp)
Registration. (ai) On or prior to the Filing Date, the The Company shall prepare and file or cause to be prepared and filed with the Commission Commission, no later than April 30, 2025 (the “Filing Deadline”), a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement 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”). The Resale Registration Statement shall be on Form S-3 (except F-3 or, if the Company use of Form F-3 is not then eligible available to register the Company, on Form F-1 or such other appropriate form permitting registration of such Registrable Securities for resale by the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Holder. The Company shall use its reasonable best efforts to cause the Resale Registration Statement to be declared effective under as soon as possible after filing, but in no event shall the Securities Act no Resale Registration Statement be declared effective 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 sixty (60) days following the Effective Date, 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 time 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 of the Registrable Securities covered by the Resale Registration Statement have been publicly sold 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 (or any successor or similar provision adopted by the PurchaserCommission then in effect) at any time beginning on the effective date for such Registration Statement, or (iii) and shall provide that such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (any method or combination of methods legally available to, and requested by, the “Effectiveness Period”)Holder.
(bii) If for The Company shall notify the Holder in writing of the effectiveness of the Resale Registration Statement as soon as practicable, and in any reason event within one (1) Business Day after the Commission does not permit Resale Registration Statement becomes effective, and shall furnish to Holder, without charge, such number of copies of the Resale 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 the Resale Shelf Registration Statement or such other documents as the Holder may reasonably request in order to facilitate the sale of the Registrable Securities to be included in the manner described in the Resale Registration Statement.
(iii) Subject to the provisions of Section 4(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to (or replacements of) the Resale Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement (or replacements thereof) effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section 2(a)4(a)(i) is filed on Form F-3 and thereafter the Company becomes ineligible to use such registration statement for secondary sales, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare promptly notify the Holder of such ineligibility and shall file a shelf registration on Form F-1 or other appropriate form as soon promptly as possible practicable (but no later than 14 calendar days after becoming ineligible to use Form F-3) to replace the date on which Resale Registration Statement and use its best efforts to have the Commission such replacement Resale Registration Statement declared effective as promptly as practicable and shall indicate as being cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the first date or time extent necessary to ensure that such filing may be made, but in any event by its Filing Date, an additional Resale Shelf Registration Statement covering is available or, if not available, that another Resale Registration Statement is available, for 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 held by the Holder until all such Registrable Securities have been sold; provided, however, that at any time the Company once again becomes eligible to use Form S-3F-3, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to cause each such replacement Resale Registration Statement to be declared effective under amended, or shall file a new replacement Resale Registration Statement, such that 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 such Resale Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodis once again on Form F-3.
(civ) If: (i) The Company represents and warrants that there are sufficient ADRs registered on a Registration Statement is not filed registration statement on or prior to its Filing Date (if Form F-6 and available for issuance in respect of all Warrant ADSs issuable hereunder, and the Company files covenants that it will cause a Registration Statement without affording the Purchaser the opportunity sufficient number of ADRs to review and comment remain registered 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 registration statement on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective Form F-6 and available for issuance to satisfy the Purchaser as to Company’s obligations hereunder at all Registrable Securities to which it times that this Warrant 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiesoutstanding.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Security Agreement (Trinity Biotech PLC), Security Agreement (Trinity Biotech PLC)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, 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 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 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 PurchaserHolders, 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 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 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 use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser 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 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 twenty Trading Day period is exceeded, being referred to as “Event Date”), then, for so long 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 such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities paid by the Purchaser aggregate Investment Amount of such Holder pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 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 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 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Emerge Interactive Inc), Registration Rights Agreement (Emerge Interactive Inc)
Registration. (a) On or prior The General Partner shall (i) prepare, file and use reasonable best efforts to cause to become effective as soon as practicable thereafter a registration statement (the "Issuance Registration Statement"), which may be on Form S-3, under the Securities Act relating to the Filing Date, Shares issuable by the Company shall General Partner upon exercise of the Redemption Rights assuming full conversion of the Series C Preferred Units into Common Units and full satisfaction of the Redemption Rights by delivery of Shares and (ii) prepare and file with the Commission a SEC such amendments and supplements to the Issuance Registration Statement and the Prospectus used in connection 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 all Registrable Securities not already covered by an existing such Shares and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. 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, in which case such registration shall be on another appropriate form for such purpose). The Company 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 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 under by the Securities Act no later than the Effectiveness Date, and shall 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 under effective, after its date of effectiveness, with respect to the Securities Act Shares of the requesting Contributing Party until the date which is the earlier of (ia) five years after the Effective Date, (ii) such time as date on which all of the Registrable Securities Shares covered by the Demand Resale Registration Statement have been publicly sold by and (b) the Purchaser, or (iii) such time as date on which all of the Registrable Securities may be sold Shares held by such Contributing Party have become eligible for sale pursuant to Rule 144(k) (the “Effectiveness Period”or any successor provision).
(bd) If for any reason During the Commission does not permit all 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 Registrable Securities Act with respect to the sale of 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;
(ii) furnish to Contributing Party, without charge, such number of authorized copies of the Prospectus relating thereto, and any amendments or supplements to such Prospectus, in conformity with the requirements of the Securities Act, and such other documents as Contributing Party may reasonably request in order to facilitate the public sale or other disposition of the Shares owned by 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 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 jurisdictions of such securities;
(iv) before filing any amendments or supplements to such Resale Registration Statement or the Prospectus 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 post-effective amendments and supplements thereto 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 Prospectus relating thereto or for additional information, and (C) of the 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 Prospectus relating to such Resale Registration Statement;
(vii) upon the occurrence of any 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 filed pursuant to Section 2(a)or the initiation of any proceedings for that purpose, or for (ii) if, between the effective date of any other reason any Registrable Securities are not included in a such Resale Registration Statement filed under this Agreementand the sale of the Shares to which it relates, then the Company shall prepare and file as soon as possible after General Partner receives any notification with respect to the date on which suspension of the Commission shall indicate as being qualification of the first date Shares or time that such filing may be made, but in initiation of 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 proceeding for such purpose). The Company General Partner shall use its reasonable best efforts to cause each obtain the withdrawal of any order suspending the effectiveness of such a Registration Statement at the earliest practicable time.
(e) The General Partner hereby agrees to be declared effective indemnify and hold harmless Contributing Party and each person, if any, who controls Contributing Party (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all losses, claims, damages, costs and expenses (including reasonable attorneys' fees) ("Claims") to which Contributing Party or such controlling person may become subject, under the Securities Act as soon as possible butor otherwise, caused by any untrue statement or alleged untrue statement of a material fact contained in any eventResale Registration Statement or the Prospectus relating thereto or any amendment or supplement thereto, no later than its Effectiveness Dateor 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, 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 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 its 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 Securities 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, under the Securities Act or otherwise, 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 any notice from the General Partner of the 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.
(g) 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 reasonable best efforts to keep such Registration Statement continuously effective under cause all Shares to be listed or otherwise eligible for full trading privileges on the Securities Act during its entire Effectiveness Period.
principal national securities exchange (ccurrently the New York Stock Exchange) If: (i) a Registration Statement is not filed on which shares of Common Stock are then listed 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 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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) before the date on which such 20 Trading Day period a Registration Statement covering the Shares becomes effective or the Shares are issued by the General Partner to a Contributing Party, whichever is exceeded, being referred later. The General Partner will use reasonable best efforts to as “Event Date”), then, continue the listing or trading privilege for so long as such event is within the Effectiveness Period, liquidated damages will accrue based all Shares on the Purchase Price exchange on which shares of Common Stock are then listed. The General Partner will promptly notify the Contributing Party of, and confirm in writing, the delisting 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable SecuritiesShares.
(di) Notwithstanding anything to the contrary contained herein, the General Partner shall have no obligation to keep any Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with Statement effective if the requirements status of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements General Partner (or its successor) as a result of such piggy-back rightsan Exchange Act Reporting Company is terminated.
Appears in 2 contracts
Sources: Redemption Rights Agreement (General Growth Properties Inc), Redemption Rights Agreement (General Growth Properties Inc)
Registration. (a) On or after the earlier of (i) the later of (A) the date on which the Company files its Annual Report on Form 10-K with respect to its 2010 fiscal year, (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, 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 this Agreement. On or prior to the Filing Date, the Company shall prepare and file with the 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 not already covered are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an existing and effective 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. The Registration Statement shall be on Form S-3 (except Notwithstanding anything to the contrary contained in this Section 2, if the Company is not then eligible receives Commission Comments, and following discussions with and responses to register for resale the Commission in which the Company uses its commercially reasonable efforts and time to cause as many 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 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 many Holders 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 possible to be included in the Registration Statement filed pursuant to Section 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 for any other reason any their respective counsel to participate in Commission conversations on 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 are not included in a Registration Statement filed under this AgreementSecurities, then the Company shall prepare may, following not less than three (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and file limitations on the registration and resale of the Registrable Securities, in each case as soon as possible after the date on which the Commission shall indicate as being may require in order for 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 Commission 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 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 under 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 Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts (if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodRule 144).
(c) 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 Purchaser 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 the terms hereof (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as then the Holders are entitled to exercise 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 rights they may have hereunder or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the under 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 Underlying Shares that are no longer Registrable Securitieslaw.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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)). In addition to the foregoing, each Holder shall provide such Registration Statements other information to the Company as a result of such piggythe Company may from time-back rightsto-time reasonably request.
Appears in 2 contracts
Sources: Registration Rights Agreement (MGT Capital Investments Inc), Registration Rights Agreement (MGT Capital Investments Inc)
Registration. (a) On or prior the terms and subject to the Filing Dateconditions of this Agreement, subject to Section 4(a) below, the Company shall prepare and file with use reasonable best efforts to file, no later than ninety (90) days following the Commission Effective Date, a Registration Statement registration statement under the Securities Act covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement 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. The Registration Statement 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, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its commercially reasonable best efforts to cause the Registration Statement registration statement to be declared effective or otherwise to become effective under the Securities Act no later than the Effectiveness Dateas soon as reasonably practicable, and shall use its commercially reasonable best efforts to keep the Registration Statement registration statement continuously effective under the Securities Act until the date which is the earlier earliest of (i) five years after the Effective Datedate on which all Registrable Securities included in such registration statement have been sold, (ii) such time as all of the date when there no longer remain any Registrable Securities have been publicly sold by the Purchaser, or all Registrable Securities are Freely Tradeable or (iii) such time as all three (3) years after the date of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”)effectiveness.
(b) If for any reason the Commission does not permit all of the Investor intends to distribute Registrable Securities to be included by means of an underwriting, (i) the Investor shall promptly so advise the Company 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 writing and (ii) the Company shall prepare have the right to appoint the book-running, managing and file as soon as possible after other underwriter(s), which such underwriters shall be reasonably acceptable to the date on which the Commission Investor; provided that in no event 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 or any of its Affiliates have any obligation to register for resale facilitate or participate in more than two (2) underwritten offerings requested by or on behalf of the Registrable Securities on Form S-3Investor. In any such underwritten offering, in which case such registration shall be on another appropriate form for such purpose). The Company shall the Investor will use its reasonable best efforts to cause each avoid allowing an individual purchaser to purchase shares in such Registration Statement offering from shares being sold on behalf of the 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 be declared effective under sales by a financial or lending institution holding shares of Common Stock pledged by 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodInvestor.
(c) If: The Company shall cause (i) a Registration Statement is not filed on or prior to its Filing Date the registration statement (if as of the Company files a Registration Statement without affording effective date of the Purchaser 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)registration statement), any amendment thereof (as of the effective date thereof) or supplement thereto (ii) a Registration Statement is not declared effective by the Commission on or prior to as of its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(cdate), such Registration Statement ceases for (A) to comply in all material respects with the applicable requirements of the Securities Act and (B) not to contain any reason untrue statement of a material fact or omit to state a material fact required to be effective and available stated therein or necessary in order to make the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodstatements therein not misleading, 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) any related prospectus, preliminary prospectus or for purposes free writing prospectus and any amendment thereof or supplement thereto, as of clause its date, (iiiA) to comply in all material respects with 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 applicable requirements of the affected Registrable Securities paid by 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 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 curedstatements therein, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence in light of the Event Date and circumstances under which they were made, not misleading; provided, however the Company shall increase by 0.50% per annum at the end of each subsequent 90-day period, but in have no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash obligations or through the issuance of Additional Notes (as defined in the Note), to 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 liabilities with respect to any information furnished 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 Company by or on behalf of the Purchaser under this Agreement Investor expressly for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiesinclusion therein.
(d) All Registration Statements under this Section 2 Expenses shall be borne by the Company. All Selling Expenses shall be borne by the Investor. The Investor shall promptly reimburse the Company for any Selling Expenses incurred by the Company upon notice (and in any event within five (5) Business Days of such notice).
(e) The Company will submit any required additional shares notification to Nasdaq that may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements required as a result of such piggy-back rightsany transaction contemplated by this Agreement.
Appears in 2 contracts
Sources: Settlement Agreement (Trafelet Remy W), Settlement Agreement (Alico Inc)
Registration. (a) On The Company shall (i) file with the Commission on or prior to the Filing Date, the Company shall prepare and file with the Commission Deadline Date a Registration Statement covering the resale offer and sale of all the Registrable Securities not already covered by an existing Securities, and effective (ii) use its reasonable best efforts to cause such Registration Statement for an offering to be made declared effective under the Securities Act on a continuous basis pursuant or prior to Rule 415the Effectiveness Deadline Date. The Registration Statement shall be on Form S-3 S-1 or Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-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 Annex A.
(b) The Company shall use its reasonable best efforts to cause prepare and file with the Commission such amendments and supplements to the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts Prospectus used in connection therewith and take all such other actions to keep the Registration Statement continuously effective under in order to permit the Prospectus to be usable by holders for resales of Registrable Securities Act from the Effective Time until the earliest to occur of (A) the date which is the earlier of (i) five years 24 months after the Effective Closing Date, (iiB) such time as the date upon which all Registrable Securities registered under the Registration Statement have been sold thereunder, and (C) the date upon which all of the Registrable Securities have been publicly sold by the Purchaser, or cease to be Restricted Securities (iii) such time period being referred to herein as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(bc) 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 (i) 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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed with the Commission on or prior to its the 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 Section 3(a) hereofDeadline Date, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a such Registration Statement covering the Registrable Securities is filed with but is not declared effective by the Commission on or prior to its required the Effectiveness Date, Deadline Date or (iii) after its the Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Time, such Registration Statement ceases for any reason to be effective and available or any Prospectus thereunder ceases to the Purchaser as be usable with respect to all any Registrable Securities to which it is required to cover at any time prior to the expiration of its the Effectiveness Period, Period for more than an aggregate of 20 Trading Days 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 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 and arising subsequent to the effectiveness of the Registration Statement or any 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 all such events the preparation and filing with the Commission of any prospectus supplement (any such failure or breach described in clauses (i), (ii) or (iii) above being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day 45 trading day-period is exceeded, being referred to as “Event Date”), thenthen following each such Event Date, the Company shall become obligated to pay to each Electing Holder, as liquidated damages and not as a penalty, a number of shares of Common Stock equal to 1.0% of the number of shares of Common Stock that were issued to such Electing Holder on the Closing Date and are still owned by such Electing Holder on an Ending Date, 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 90each 30-day period immediately following the occurrence of (pro rated on a daily pro-rata basis for periods shorter than 30 days) elapsed between the Event Date and the earlier of: (A) the date that the applicable Event is cured and (B) the date that the Effectiveness Period expires. No such payments shall increase be payable in respect of any Underlying Warrant Shares or securities that are not Registrable Securities. Liquidated damages payments payable by 0.50% per annum at the Company under this Section 2(c) shall be issued by the Company to each Electing Holder not later than seven Business Days following the end of each subsequent 9030-day period, but in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash period or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date portion 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 (each such end date being an “Ending Date”). Notwithstanding anything to the initial Event Date thereof. Following contrary contained herein or in the cure of all EventsSubscription Agreement or any related document or agreement, the accrual aggregate number of liquidated damages shall cease. The shares of Common Stock issued or issuable to any holder as liquidated damages under this Section 2(c) shall be the sole and exclusive remedy not exceed 10% of the Purchaser under this Agreement for an Event. Notwithstanding aggregate number of shares of Common Stock issued to such holder on the foregoing, no liquidated damages will accrue hereunder Closing Date pursuant to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesSubscription Agreement.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Subscription Agreement (Geopetro Resources Co), Registration Rights Agreement (Geopetro Resources Co)
Registration. As soon as possible following the Closing Date (a) On or prior to but not later than the Filing DateDeadline), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a secondary or resale offering to be made on a continuous basis pursuant to Rule 415, provided that in no case shall such Registration Statement cover a number of shares of Common Stock in excess of the amount of shares of Common Stock which may be issued upon conversion of the Notes and Warrants (the “Issuable Maximum”) without causing the Company to breach its obligations under the rules or regulations of the Nasdaq Stock Market (including without limitation Section 5635(d) of the NASDAQ Stock Market Rules). The Registration Statement shall be on Form S-3 (except or if such form is not available to the Company is not then eligible to register on another form appropriate for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no as soon as possible, and in any event not later than one hundred twenty (120) days after the Effectiveness DateClosing, and shall use its reasonable best efforts to keep file with the Registration Statement continuously effective Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act until within five (5) Business Days of the date which that the Company is the earlier of notified (iorally or in writing, whichever is earlier) 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 that 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 will not be “reviewed,” or time that such filing may not 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 subject 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 under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Datefurther review, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire until such date as is the earlier of (x) the date when all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which all Registrable Securities may be sold without any restriction pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter, addressed to the Company’s transfer agent to such effect (but not less than one year, and so long as any Registrable Securities exist if the Company was ever a shell company as defined in Rule 144(i) (the “Effectiveness Period.
(c) If: ”). Upon the initial filing thereof and upon the filing of any pre-effective amendment thereto, the Registration Statement shall cover at the lesser of (i) 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i))Issuable Maximum, or (ii) a at least 150% of the shares of Common Stock for issuance upon the conversion of the Notes and exercise of the Warrants (without regard to any issuance or beneficial ownership limitations). Such Registration Statement is not declared effective by also shall cover, subject to the Commission on or prior Issuable Maximum, to its required Effectiveness Date, or the extent allowable under the Securities Act and the Rules promulgated thereunder (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(cincluding Securities Act Rule 416), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration indeterminate number of its Effectiveness Periodadditional shares of Common Stock resulting from stock splits, for an aggregate of 20 Trading Days for all such events (any such failure stock dividends 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 issuance of Additional Notes (as defined in the Note), to 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 similar transactions 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (LOCAL Corp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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. (a) On or prior to the each Filing Date, the Company shall will use commercially reasonable efforts to prepare and file with the 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. The Registration Statement (i) 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, in which case such registration shall be on another appropriate form for such purpose)) and, if the Company is a WKSI as of the 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. The Company shall will use its commercially 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 or otherwise 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 become effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness Date, and shall will use its their commercially reasonable best efforts to keep the Registration Statement (or 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 or otherwise to become effective under the Securities Act as soon as practicable after the applicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and will use their commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act at all times during its entire the Effectiveness Period; provided that, the Company will not be obligated to update the Registration Statement and no sales may made under the applicable Registration Statement during any Black-Out Period of which the Holders have received notice.
(cb) If: (i) a any 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 Section 3(a) hereofDate, the Company shall not be deemed to have satisfied this clause (i)), or (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, Date or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its the Effectiveness Period (in each case, except as specifically permitted herein with respect to any applicable Black-Out Period, for an aggregate of 20 Trading Days for all such events ) (any such failure or breach being referred to as an a “Event,” and for purposes of clauses Registration Default”).
(ic) and (ii) or for purposes of clause (iii) The Company shall not, from 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 hereof until the Effectiveness Period, liquidated damages will accrue based on the Purchase Price Effective Date of the affected Registrable initial Registration Statement, prepare and file with the Commission a registration statement relating to an offering of any of its securities for its own account or the account of others under the 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable SecuritiesAct.
(d) Registration Statements The registration rights granted under this Section 2 may contain shares other than shall automatically terminate upon the earlier of (i) such time as there are no outstanding Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreementsand (ii) June 3, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights2019.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Netflix Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such 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 the earlier earliest of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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”); provided, that, during the Effectiveness Period, the Registration Statement may cease to be 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 Trading Day immediately 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) If for any reason Each Holder agrees to furnish to the Commission does not permit all of the Registrable Securities to be included Company a completed Questionnaire in the Registration Statement filed pursuant form attached to Section 2(a), or for any other reason any Registrable Securities are not included in this Agreement as Annex B (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“Selling Holder Questionnaire”). The Company shall use its reasonable best efforts not be required to cause each such Registration Statement to be declared effective under include the Registrable Securities Act as soon as possible but, of a Holder in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior who fails to its Filing Date (if furnish to the Company files a Registration Statement without affording the Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover fully completed Selling Holder Questionnaire at any time least two Trading Days 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Filing Date thereof (if the applicable Event shall not have been cured by such date) until the applicable Event is cured. The liquidated damages pursuant subject 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 requirements set forth in 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 Underlying Shares that are no longer Registrable Securities3(a)).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Magnetar Capital Partners LP), Registration Rights Agreement (Think Partnership Inc)
Registration. (a) On or prior to the Filing Date, the The Company shall prepare and file file, as soon as practicable, but in no event later than two (2) months after the Closing Date (the “Filing Deadline”), with the Commission 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. The Such Registration Statement shall be on Form S-3 F-3 (except or, if the Company Form F-3 is not then eligible available to register the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposeSecurities). The Company shall use its reasonable best efforts (i) to cause the such Registration Statement to be declared effective by the SEC under the Securities Act no later than (unless it becomes effective automatically upon filing) as promptly as possible after the Effectiveness Datefiling thereof, and shall use its reasonable best efforts respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep the such Registration Statement continuously effective under the Securities Act until the date on which is all Registrable Securities covered by such Registration Statement have been sold (the earlier “Effective Period”). Such Registration Statement shall not include any Shares or other securities for the account of any other holder without the prior written consent of Purchaser. Notwithstanding the registration obligations set forth in this Section 5.18, 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) five years after inform each Holder and use its best efforts to file amendments to the Effective Date, 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 time 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 5.18(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 publicly sold 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 the Purchaser, or such Registration Statement;
(iii) furnish to each Holder a Prospectus which requirement may be fulfilled by the public filing of such time 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 all the Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”).owned by it that are included in such registration;
(biv) If notify each Holder and its counsel in writing (A) 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, (B) of the receipt by the Company of any reason notification with respect to the Commission does not permit all 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, (C) 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 (D) 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 of the Securities Act;
(v) use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (A) any order suspending the effectiveness of the Registration Statement, or (B) 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 Purchaser;
(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 included 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 Shares (including American depositary shares representing the 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 Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement filed pursuant cause an opinion of legal counsel as 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 effectiveness of 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 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 Purchaser 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodStatement.
(c) If: (i) a Registration Statement The Company understands that each Holder disclaims being an underwriter, but in the event any Holder 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 Section 3(a) hereofdeemed an underwriter, 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for relieved of any reason to be effective and available to the Purchaser as to all Registrable Securities to which obligations 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitieshereunder.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Ark Pacific Investment Management LTD)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a the Registration Statement covering the resale of all of the 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. The Registration Statement required hereunder 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, in which case such registration the Registration shall be on another appropriate form for such purposein 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 reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no as promptly as possible after the filing thereof, but in any event not 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 when all of the Registrable Securities covered by the Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities 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 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, on Form S-3 . Each such Registration Statement shall contain (except if otherwise directed by the Company is not then eligible to register for resale Holders) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "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, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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) 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 prior to before its required Effectiveness Date, or (iiiiv) after its Effective Dateduring the Effectiveness Period, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration of its Effectiveness PeriodProspectus therein to resell such Registrable Securities, for in any and all such cases for more than an aggregate of 20 Trading Days for all such events (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 clauses clause (i) and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period 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”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.5% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case of the Purchaser under this Agreement for an Eventfirst Event Date. Notwithstanding the foregoing, no liquidated damages will accrue hereunder to any day on which a Force Majeure has occurred or is continuing shall not count toward the Purchaser with respect to the Primary Shares or 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 requirements calculation of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as days for the Filing Date, the Effectiveness Date, the Response Date and a result of such piggy-back rightsGrace Period.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dor Biopharma Inc), Registration Rights Agreement (Dor Biopharma Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. 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, in which case such registration shall be on another appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 four years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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”"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 or then issuable Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereofhereof for at least two Business Days, 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event"EVENT,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day 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 the one-month anniversary of each such Event Date”), thenand on each monthly anniversary thereafter, for so long the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder 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 issuance of Additional Notes (as defined in the Note), to 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 parties agree that the Company will not be liable for liquidated damages under this Section in respect of the Warrants. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be cutback 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 within two Business Days of a request by the Company for such Registration Statements as a result of such piggy-back rightsSelling Holder Questionnaire (subject to the requirements set forth in Section 3(a)).
Appears in 2 contracts
Sources: Registration Rights Agreement (Flexible Solutions International Inc), Registration Rights Agreement (Flexible Solutions International Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and (without any request, demand or notice from the Holders or any other Person) either (i) file with the Commission a “Shelf” Registration Statement covering the resale of all the Registrable Securities not already covered by an existing and effective Registration Statement 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. 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, in which case such registration shall be on another appropriate form for such purpose). The in accordance herewith) and shall contain substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than as promptly as possible after the filing thereof, but in any event prior to 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 covered by such Registration Statement have been publicly sold by the Purchasersold, or (iii) such time as all of the Registrable Securities 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 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 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 telephonically request effectiveness of a Registration Statement to 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 declared effective under the Securities Act as soon as possible butdate requested for effectiveness of the Registration Statement. The Company shall, in any event, no later than its Effectiveness by 9:30 am Eastern Time on the Trading Day after the Effective Date, and 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 use its reasonable best efforts to keep such Registration Statement continuously effective be deemed an Event under the Securities Act during its entire Effectiveness PeriodSection 2(b).
(cb) If: (i) a the Registration Statement is not filed on or prior to its the Filing Date (if the Company files a the Registration Statement without affording the Purchaser 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) 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 that the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed,” or not subject to further review, or (iii) prior to the Effectiveness Date, 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 10 calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for the Registration Statement to be declared effective, or (iv) the Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on by its Effectiveness Date for reasons that are beyond the reasonable control of the Company, or prior to its required (v) after the Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are otherwise not permitted to utilize the expiration of its Effectiveness Period, Prospectus therein to resell such Registrable Securities for more than 10 consecutive calendar days or more than an aggregate of 20 Trading Days for all such events 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 clauses clause (i) and 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 on which such 20 Trading Day 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”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long as on each 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 issuance of Additional Notes (as defined in the Note), to 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 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 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 pro daily 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cord Blood America, Inc.), Registration Rights Agreement (Cord Blood America, Inc.)
Registration. (ai) On or prior to the Filing Date, the The Company shall prepare and file or cause to be prepared and filed with the Commission Commission, no later than April 30, 2025 (the “Filing Deadline”), a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement 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”). The Resale Registration Statement shall be on Form S-3 (except F-3 or, if the Company use of Form F-3 is not then eligible available to register the Company, on Form F-1 or such other appropriate form permitting registration of such Registrable Securities for resale by the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Holder. The Company shall use its reasonable best efforts to cause the Resale Registration Statement to be declared effective under as soon as possible after filing, but in no event shall the Securities Act no Resale Registration Statement be declared effective 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 sixty (60) days following the Effective Date, Filing Deadline or (ii) ten (10) Business Days after the Commission notifies the Company that it will not review the Resale 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 time 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 of the Registrable Securities covered by the Resale Registration Statement have been publicly sold 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 (or any successor or similar provision adopted by the PurchaserCommission then in effect) at any time beginning on the effective date for such Registration Statement, or (iii) and shall provide that such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (any method or combination of methods legally available to, and requested by, the “Effectiveness Period”)Holder.
(bii) If for The Company shall notify the Holder in writing of the effectiveness of the Resale Registration Statement as soon as practicable, and in any reason event within one (1) Business Day after the Commission does not permit Resale Registration Statement becomes effective, and shall furnish to Holder, without charge, such number of copies of the Resale 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 the Resale Registration Statement or such other documents as the Holder may reasonably request in order to facilitate the sale of the Registrable Securities to be included in the manner described in the Resale Registration Statement.
(iii) Subject to the provisions of Section 4(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to (or replacements of) the Resale Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement (or replacements thereof) effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section 2(a)4(a)(i) is filed on Form F-3 and thereafter the Company becomes ineligible to use such registration statement for secondary sales, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare promptly notify the Holder of such ineligibility and shall file a shelf registration on Form F-1 or other appropriate form as soon promptly as possible practicable (but no later than 14 calendar days after becoming ineligible to use Form F-3) to replace the date on which Resale Registration Statement and use its best efforts to have the Commission such replacement Resale Registration Statement declared effective as promptly as practicable and shall indicate as being cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the first date or time extent necessary to ensure that such filing may be made, but in any event by its Filing Date, an additional Resale Registration Statement covering is available or, if not available, that another Resale Registration Statement is available, for 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 held by the Holder until all such Registrable Securities have been sold; provided, however, that at any time the Company once again becomes eligible to use Form S-3F-3, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to cause each such replacement Resale Registration Statement to be declared effective under amended, or shall file a new replacement Resale Registration Statement, such that 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 such Resale Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodis once again on Form F-3.
(civ) If: (i) The Company represents and warrants that there are sufficient ADRs registered on a Registration Statement is not filed registration statement on or prior to its Filing Date (if Form F-6 and available for issuance in respect of all Warrant ADSs issuable hereunder, and the Company files covenants that it will cause a Registration Statement without affording the Purchaser the opportunity sufficient number of ADRs to review and comment remain registered 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 registration statement on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective Form F-6 and available for issuance to satisfy the Purchaser as to Company’s obligations hereunder at all Registrable Securities to which it times that this Warrant 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiesoutstanding.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Security Agreement (Trinity Biotech PLC), Security Agreement (Trinity Biotech PLC)
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 [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 purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the 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 (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all Within three business days of the Registrable Securities to be included Effectiveness Date and each request by Purchaser in the Registration Statement filed pursuant event it desires to Section 2(a), or for exercise any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then of 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofWarrants, the Company shall not cause its counsel to issue an 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 deemed to have satisfied this clause (i)), or (ii) reissued free of restrictive legend upon notice of a Registration Statement is not declared effective sale by the Commission on 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 prior to its in writing that the opinion has been withdrawn. Copies of the blanket opinion required Effectiveness Date, or (iiiby this Section 2(b) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to shall be effective and available delivered to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Iwt Tesoro Corp), Registration Rights Agreement (Iwt Tesoro Corp)
Registration. (a) On or prior Within 30 days of the date of the final closing under the equity financing currently being conducted by the Company (which is currently set to occur on April 6, 2007 but may be extended in the Filing Datesole discretion of the Company’s Board of Directors) but in any event no later than May 31, 2007, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 commercially reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, as soon as possible and shall use its commercially 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaseriVOW, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by iVOW 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 iVOW (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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, 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 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 commercially 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 by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior iVOW agrees to its Filing Date (if furnish to the Company files a Registration Statement without affording completed Questionnaire in the Purchaser the opportunity form attached to review and comment on the same this Agreement as required by Section 3(a) hereof, the Annex B (a “Selling Holder Questionnaire”). The Company shall not be deemed required to have satisfied this clause (i)), or (ii) include the Registrable Securities of iVOW in a Registration Statement is not declared effective by the Commission on or prior if iVOW fails to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available furnish to the Purchaser as to all Registrable Securities to which it is required to cover Company a fully completed Selling Holder Questionnaire at any time least two Trading Days 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 filing of the affected Registrable Securities paid applicable Registration Statement. iVOW acknowledges that the Company may, in its sole discretion, include shares of capital stock held by other selling stockholders on any Registration Statement covering 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 resale 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Crdentia Corp), Registration Rights Agreement (iVOW, Inc.)
Registration. (a) On or prior Listco represents and warrants to IDG Alternative and the Lender as of the date hereof and as of the Filing Date, Date that Listco meets the Company shall prepare and file with the Commission a Registration Statement covering the resale requirements for use 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. 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, 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 F-3 under the Securities Act no later than the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective Listco is a “well-known seasoned issuer” as defined in Rule 405 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”)Act.
(b) If for To the extent permitted under applicable Law, as soon as practicable after the Closing but in any reason event no later than 45 days thereof (or such later period agreed to by IDG Alternative and the Commission does not permit Lender), Listco shall take all necessary actions as reasonably required by IDG Alternative or the Lender to prepare and file a registration statement on Form F-3 (together with any supplements or amendments thereto, including all necessary documents and information incorporated or to be incorporated by reference therein, the “Registration Statement”) covering the offering and sale of the Registrable Securities pursuant to be included in Rule 415 under the Securities Act and Listco shall use commercially reasonable efforts to cause such Registration Statement filed pursuant to Section 2(a), become effective or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then declared effective (the Company shall prepare and file “Registration”) by the SEC as soon as possible after such filing. In addition, promptly 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 offering and sale 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-3pursuant to the Registration Statement (to the extent that the Lender decides to sell any Registrable Securities pursuant to the Facility Agreement), in which case such registration Listco shall file the Prospectus to be on another appropriate form used for such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement to be declared effective offering and sale as required by and in accordance with Rule 424 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodAct.
(c) If: Such Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to the Lender, IDG Alternative and their respective counsel at a reasonable time prior to its filing or other submission and shall not be filed or submitted in a form to which the Lender, IDG Alternative or their respective counsel reasonably objects.
(d) Listco shall notify IDG Alternative and the Lender by facsimile or email as promptly as practicable, and in any event, within 1 Business Day, after any such Registration Statement becomes or is declared effective.
(e) Each of Listco and IDG Alternative shall bear 50 per cent. of the Registration Expenses incurred in connection with the Registration.
(f) Listco shall enter into such customary agreements for underwritten secondary offerings and take all such actions and deliver or cause to be delivered such other documents and instruments reasonably requested by IDG Alternative or the Lender or the lead underwriter in any secondary underwritten offering in order to expedite or facilitate the disposition of the Registrable Securities; provided that, the fees and expenses to be incurred in connection with an underwritten offering of (i) 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 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 certain other securities of clause Listco (iiiif any) 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 issuance of Additional Notes (as defined in the Note), to 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 borne on a pro rata basis for any portion of a month prior in proportion 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the aggregate number of Registrable Securities shall not be cutback under any securities being sold by each seller participating the such Registration Statements as a result of such piggy-back rightsunderwritten offering.
Appears in 2 contracts
Sources: Supplemental Agreement (Ho Chi Sing), Supplemental Agreement (Mo Tianquan)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 S-1 (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 or on another form appropriate form for such purpose). 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 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 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 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) 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 keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
. By 5:00 p.m. (cNew York City time) 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofEffective Date of such Registration Statement, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by file with the Commission on or prior in accordance with Rule 424 under the Securities Act the final prospectus to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event be used in compliance connection with Section 6(c), sales pursuant to such Registration Statement ceases for any reason (whether or not such filing is technically required under such Rule). Any Registration Statement required to be effective and available filed under this Section shall include a number of shares of Common Stock equal to not less than the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration sum 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) all of the Shares not then covered by an effective Registration Statement and (ii) or all Warrant Shares issued and issuable pursuant to the Warrants as of the trading day immediately preceding the applicable date of determination which are not then covered by an effective Registration Statement, subject to adjustment as provided for purposes in the Warrants (without regard to any limitations on exercises of clause the Warrants, but assuming all such exercises occurred on the Trading Day immediately prior to the date such Registration Statement is filed) and (iii) the date on which such 20 Trading Day period is exceededany securities issued or issuable upon any stock split, being referred to as “Event Date”)dividend, thenor other distribution, for so long as such event is within the Effectiveness Periodrecapitalization or similar event, 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 issuance of Additional Notes (as defined in the Note), to 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 conversion price adjustment 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 any 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 Underlying Shares that are no longer Registrable SecuritiesWarrant Shares.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Navarre Corp /Mn/), Registration Rights Agreement (Navarre Corp /Mn/)
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) On or prior The Company shall use its reasonable best efforts to cause the Initial 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 Initial Registration Statement continuously effective, supplemented and amended to the Filing Dateextent 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 180th day following the date the Initial Registration Statement is declared effective by the SEC, the Company shall prepare and file with the Commission a SEC 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 required to register such number of Registrable Securities pursuant to this Section 2.2(b), such that the offering of such Registrable Securities will not be deemed, in the reasonable judgment of the Company after consultation with the Buyers and with the SEC, to be a “primary offering.” The Company shall use its reasonable best efforts to cause 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 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.
(c) 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 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, 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. The Each such Registration Statement shall be on Form S-3 (except if provide for the Company is not then eligible resale from time 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 the Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Datetime, and shall use its reasonable best efforts pursuant to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier any method or combination of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold methods legally available by the Purchaser, or (iii) such time as all Designated Holders 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)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 use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser the opportunity to review and comment period beginning 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 applicable Effectiveness Date and ending on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 all Registrable Securities paid by the Purchaser pursuant registered thereunder have ceased to the Purchase Agreement from and including the Event Date but excluding the date on which the Event has been curedbe Registrable Securities. For so long as the Event has not been curedavoidance of doubt, liquidated damages the Company will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence of the Event Date prepare and shall increase by 0.50% per annum at the end of each subsequent 90-day period, but file additional Registration Statements in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to 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 accordance with 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 until such time as 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 Underlying Shares that Registrable Securities are no longer Registrable Securitiescovered by effective Registration Statements.
(d) The Company may, at any time it is eligible to do so, file a post-effective amendment on Form S-3 to any Registration Statements under this Section 2 may contain shares other than Statement on Form S-1 for the resale of any then existing Registrable Securities or in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such other manner as is preferred or permitted by the SEC to convert such Registration Statements as Statement to a result Form S-3 Registration Statement. Upon the effectiveness of such piggy-back rightsForm S-3 Registration Statement, all references to a Registration Statement in this Agreement shall then automatically be deemed to be a reference to the Form S-3 Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Miscor Group, Ltd.), Registration Rights Agreement (Tontine Capital Partners L P)
Registration. (ai) On or prior Tilray’s obligation to include a Seller’s Registrable Securities in the Filing DateRegistration Statement is contingent upon such Seller furnishing in writing to Tilray such information regarding the Seller, the Company securities of Tilray held by such Seller and the intended method of distribution of the Registrable Securities as shall prepare be reasonably requested by Tilray to effect the registration of the Registrable Securities, and file 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. Tilray shall, in the case of a newly filed Registration Statement, cause such Registration Statement to become effective upon filing with the Commission a Registration Statement covering under the resale of all Registrable U.S. 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. 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-3Act and, in which the case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause the of a prospectus supplement or a newly filed Registration Statement to be declared effective under the Securities Act no later than the Effectiveness DateStatement, and shall use its reasonable best efforts to keep the Registration Statement continuously effective under the U.S. Securities Act until during the date which is the earlier of (i) five years after the Effective Date, Effectiveness Period.
(ii) such time as all 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 publicly sold by resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), Tilray shall use its commercially reasonable efforts to obtain the Purchaserprompt 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 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 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 time 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 all 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) twenty (20) calendar days after such date or (y) twenty (20) calendar days after the expiration of any Deferral Period in effect when the Notice and Questionnaire are delivered or put into effect within five (5) Business Days of such delivery date (but in any event, not more than once in any fiscal quarter):
(A) if required by applicable law, use commercially reasonable efforts to file with the Commission a post-effective amendment to the Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file a new Registration Statement or any other required document so that the Seller delivering such Notice and Questionnaire is named as a selling securityholder in a Registration Statement and the related Prospectus in such a manner as to permit such Seller to deliver such Prospectus to purchasers of the Registrable Securities may be sold pursuant in accordance with applicable law and, if Tilray shall file a post-effective amendment 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 Agreementor shall file a new Registration Statement, 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 Tilray shall use its commercially reasonable best efforts to cause each 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 documents 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-effective amendment filed pursuant to Section (a)(v)(A); provided that if such Notice and Questionnaire are delivered during a Deferral Period, Tilray shall so inform the Seller delivering such Notice and Questionnaire and shall take the actions set forth in clauses (A), (B) and (C) above upon expiration of the Deferral Period in accordance with Section (b)(vii). Notwithstanding anything contained herein to the 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 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 as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 resale of the affected Registrable Securities paid Shares held 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 cureda Notice Holder or any other Notice Holder or otherwise, 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Shares to be registered for each Notice Holder in the Registration Statement shall not be cutback under any reduced pro rata among all such selling securityholders such that the Registration Statements Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as a result of such piggy-back rightsis permitted by the Commission.
Appears in 2 contracts
Sources: Assignment and Assumption Agreement (Tilray, Inc.), Assignment and Assumption Agreement (Tilray, Inc.)
Registration. (a) On If at any time after the 30-month anniversary of the Effective Date (or prior to 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 promptly as reasonably practicable, but not later than the 30th day after receipt of such written request (any such date of filing, the “Filing Date”), the Company shall prepare and file with the Commission 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. 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, in which case such registration shall be be, at the election of the Investors’ Representative on behalf of the Investors, on Form S-1 or another appropriate form for such purpose)) and, if the Company is a WKSI as of the Filing Date, shall be an Automatic Shelf Registration Statement. The Thereafter, the Company shall use its commercially reasonable best efforts to cause the any such Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness DateDeadline, and shall use its commercially reasonable best efforts to keep the such 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 Company Common Shares subject to this Article III cease to be 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 At any reason time and from time to time on or after the Commission does not permit all 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 Investor requesting that the Company effect an Underwritten Offering of Registrable Securities to be included in of the Registration Statement filed pursuant to Section 2(aInvestors (a “Demand Offering”), 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 use its commercially reasonable efforts to effect, as soon promptly 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 Datereasonably practicable, an additional Registration Statement covering Underwritten Offering of such Registrable Securities; provided, however, (w) at the resale time of all Registrable Securities not already covered by the Demand Offering, there shall be 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 Section 3.01(a) that covers the Registrable Securities on Form S-3for which a Demand Offering has been requested or the Company shall then be WKSI eligible, in which case such registration (x) with respect to any Registrable Securities, the Company shall be on another appropriate form for obligated to effect no more than one Roadshow Offering in any 12-month period (provided, that if any such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement Roadshow Offering is reasonably likely to be declared effective under completed outside of such 12-month period, the Company’s obligations to effect such Demand Offering shall continue) and (y) the Registrable Securities Act as soon as possible but, in any event, no later 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 ten trading days preceding the delivery of such Demand Notice) of not less than its Effectiveness Date, $150,000,000. Each such Demand Notice will specify the number of Registrable Securities owned by the demanding Investors and shall use its reasonable best efforts the number of Registrable Securities proposed to keep such Registration Statement continuously effective under be offered for sale and will also specify the Securities Act during its entire Effectiveness Periodintended method of distribution thereof.
(c) If: In the event of a Demand Offering, the Underwriters (iincluding the lead Underwriter) for such Demand Offering will be a Registration Statement is not filed nationally recognized investment bank selected by the Investors’ Representative on or prior to its Filing Date (if behalf of the Investors with the approval of the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company (which approval shall not be deemed to have satisfied this clause (iunreasonably withheld)), or (ii) a Registration Statement 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements Notwithstanding anything to the contrary in this Agreement, the Investors may not request a Demand Offering during a period commencing upon the date of 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 ending (i) 90 days after the 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 no longer intends to conduct an Underwritten Offering.
(e) The Investors will be permitted to rescind a Demand Notice or request the removal of any Registrable Securities held by them from any Demand Offering at any time (so long as, in the case of a Demand Offering, after such removal it would still constitute a 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 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 this Section 2 may contain shares other than Registrable Securities 3.01, unless the Investors reimburse the Company for all Offering Expenses incurred by the Company in accordance connection with the requirements of piggy-back rights granted under predecessor agreements, such Roadshow Offering (provided, that the number of Registrable Securities Investors shall not be cutback under required to so reimburse the Company for the Company’s out-of-pocket expenses incurred to prepare and file any Registration Statement pursuant to Section 3.01(a) or any amendment thereto necessary to maintain the effectiveness of such Registration Statements as a result Statement or for the Company’s internal expenses (including all salaries and expenses of such piggy-back rightsits officers and employees performing legal or accounting duties)).
Appears in 2 contracts
Sources: Shareholder Agreement (Genpact LTD), Shareholder Agreement (Genpact LTD)
Registration. (a) On or prior Subject to the Filing Dateother applicable provisions of this Agreement, the Company shall prepare and file with file, as promptly as reasonably practicable, but no later than the Commission Filing Deadline, a Registration Statement registration statement under the 1933 Act covering the resale of all Registrable Securities not already covered sale or distribution from time to time by an existing and effective Registration Statement for an offering to be made the Investors, on a delayed or continuous basis pursuant to Rule 415415 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 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, in which case then such registration shall be on another appropriate form for such purposepurposes) (the “Resale Shelf Registration Statement”). The Company shall use its reasonable best efforts to cause the such Resale Shelf Registration Statement to be declared effective under by the Securities Act no later than Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness DateDeadline.
(b) Once declared effective, and shall the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to keep cause the Resale Shelf Registration Statement to be continuously effective under the Securities Act and usable until the date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the there are no longer any 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”).
(bc) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)Effectiveness Period, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare use its reasonable best efforts to, as promptly as practicable, 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 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 Dateshall, 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 an additional registration statement (a “Subsequent Shelf Registration Statement covering the resale of all Registrable Securities not already covered by an existing Statement,” and effective Registration Statement such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415, on Form S-3 (except if 415 of the Company is not then eligible 1933 Act registering the resale from time to register for resale time by the Investors of all securities that are Registrable Securities on Form S-3as of the time of such filing. If a Subsequent Shelf Registration is filed, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to (i) cause each such Subsequent Shelf Registration Statement to be declared become effective under the Securities 1933 Act as soon promptly as is reasonably practicable after such filing, but in no event later than the date that is forty-five (45) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (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 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 applicable law;
(ii) if, pursuant to 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 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 effectiveness under the 1933 Act of any post-effective amendment filed pursuant to Section 2(e)(i).
(f) Notwithstanding the registration obligations set forth in this Section 2, in the event the Commission informs the Company that all of the Registrable Securities cannot be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform in writing each of the Investors and use its reasonable best efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file as promptly as possible buta new registration statement (a “New Registration Statement”) on Form S-3, in any eventor if Form S-3 is not then available to the Purchaser for such registration statement, no later than its Effectiveness Dateon such other form available to register for resale the Registrable Securities as a secondary offering; provided, and however, that prior to filing such amendment or New Registration Statement, the Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 advocate with 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as to registration of 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 issuance of Additional Notes (as defined in the Note), to 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 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 any publicly available written or oral guidance, comments, requirements or requests of the requirements Commission staff. Notwithstanding any other provision of piggy-back rights granted under predecessor agreementsthis Agreement, provided, that if the Commission imposes a limitation on the number of Registrable Securities shall not permitted to be cutback under any 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 Statements 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 a result the case may be, under clauses (i) or (ii) above, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission provided to the Purchaser or to registrants of securities in general, one or more registration statements on Form S-3 or such piggy-back rightsother 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.
Appears in 2 contracts
Sources: Registration Rights Agreement (KCP Holdings LTD), Registration Rights Agreement (Triller Group Inc.)
Registration. (a) On or prior Subject to the Filing Dateother applicable provisions of this Agreement, the Company shall prepare file, as promptly as reasonably practicable, but no later than the applicable Filing Deadline, (i) the Prospectus Supplement, if permitted by applicable law and file with the Commission Company determines that registration through a Registration Statement 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 resale of all Registrable Securities not already covered sale or distribution from time to time by an existing and effective Registration Statement for an offering to be made the Investors, on a delayed or continuous basis pursuant to Rule 415415 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 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, in which case then such registration shall be on another appropriate form for such purposepurposes) (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. The If the Resale Shelf Registration Statement is not an Automatic Shelf Registration Statement, then the Company shall use its reasonable best efforts to cause the such Resale Shelf Registration Statement to be declared effective under by the Securities Act no later than Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness DateDeadline.
(b) Once declared effective, and shall the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to keep cause the Resale Shelf Registration Statement to be continuously effective under the and usable until such time as there are no longer any Registrable Securities Act until the date which is the earlier of (i) five years after the Effective Date, (ii) or at 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) are Freely Tradeable (the “Effectiveness Period”).
(bc) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)Effectiveness Period, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare 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 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 Dateshall, 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 an additional registration statement (a “Subsequent Shelf Registration Statement covering the resale of all Registrable Securities not already covered by an existing Statement,” and effective Registration Statement such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415, on Form S-3 (except if 415 of the Company is not then eligible 1933 Act registering the resale from time to register for resale time by the Investors of all securities that are Registrable Securities on Form S-3as of the time of such filing. If a Subsequent Shelf Registration is filed, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to (i) cause each such Subsequent Shelf Registration Statement to be declared become effective under the Securities 1933 Act as soon promptly as possible butis reasonably practicable after such filing, but in any event, no event later than its the date that is ninety (90) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective until the end of the Effectiveness DatePeriod. 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, and if the Company is a WKSI as of the filing date, such registration statement shall be an Automatic Shelf Registration Statement. 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 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 applicable law;
(ii) if, pursuant to 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 keep cause such Registration Statement continuously post-effective amendment to become effective under the Securities 1933 Act during its entire Effectiveness Period.
as promptly as is reasonably practicable, but in any event by the date that is ninety (c90) If: (i) a Registration Statement days after the date such post-effective amendment 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 Section 3(a2(e)(i) hereof, the Company shall not to 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 filed; and
(iii) notify such Investor as promptly as is reasonably practicable after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for effectiveness under the 1933 Act of any reason to be post-effective and available to the Purchaser as 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 amendment filed 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 issuance of Additional Notes (as defined in the NoteSection 2(e)(i), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Registration Rights Agreement (Act III Holdings LLC), Registration Rights Agreement (BJs RESTAURANTS INC)
Registration. (a) On or prior to Upon the Filing Dateoccurrence of a Triggering Event, ------------ Issuer shall, at the Company shall prepare request of Grantee included in the Exercise Notice, as promptly as practicable prepare, file and file with the Commission keep current 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. 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, in which case such shelf 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 statement under the Securities Act no later than covering all Option Shares issued and issuable pursuant to the Effectiveness Date, Option and shall use its best reasonable best efforts to keep cause such registration statement to become effective and remain current in order to permit the Registration Statement continuously sale or other disposition of any Option Shares issued upon exercise of the Option in accordance with any plan of disposition requested by Grantee; provided, however, that 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 or effectiveness would require the disclosure of material information that Issuer has a bona fide business purpose for preserving as ---- ---- confidential or would cause Issuer, at a time when Issuer is otherwise in compliance with all its obligations under this Section 8, to be in violation of the federal securities laws or the rules and regulations thereunder. Issuer will use its best reasonable efforts to cause such registration statement first to become effective under the Securities Act and then to remain effective for 270 days or until the such earlier date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities shares registered shall have been publicly sold by the PurchaserGrantee. In connection with any such registration, or (iii) Issuer and Grantee shall provide each other with representations, warranties, indemnities, contribution and other agreements customarily given in connection with such time as all of the Registrable Securities may be sold pursuant registrations. If requested by Grantee in connection with such registration, Issuer shall become a party to Rule 144(k) one underwriting agreement (the “Effectiveness Period”)managing underwriter(s) thereunder being approved by Issuer, such approval not to be unreasonably withheld or delayed) relating to the sale of such shares, but only to the extent of obligating Issuer in respect of representations, warranties, indemnities, contribution and other agreements customarily made by issuers in such underwriting agreements.
(b) If for any reason In the Commission does not permit all event that Grantee so requests, the closing of the Registrable Securities sale or other disposition of the Option Shares or other securities pursuant to be included in the Registration Statement a 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 8(a) shall occur substantially simultaneously with 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 exercise 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable SecuritiesOption.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 2 contracts
Sources: Stock Option Agreement (Rental Service Corp), Stock Option Agreement (Nationsrent Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire 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, but in any event prior to the Effectiveness Date therefor.
(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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events 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) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, 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 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 the earlier of (i) five years after the Effective Date, (ii) such time as all expiration 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 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 its Filing Datethe 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 under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness DateDate for such Registration Statement, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long 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 such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to .0003333 of the affected Registrable Securities Investment Amount paid by the Purchaser pursuant to such Investor under the Purchase Agreement from and including for each day up through 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 second monthly anniversary of 0.50% per annum during the 90-day period immediately following the occurrence of the such Event Date and shall increase by 0.50% per annum at then .0006666 of 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured Investment Amount paid by such date) 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 terms hereof shall apply on date payable, the Company will pay interest thereon at a pro rata basis for any portion rate of a month prior 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the cure of an Event other than with respect to Holder, accruing daily from the initial Event Date thereof. Following the cure of all Events, the accrual of date such 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 foregoingare due until such amounts, no liquidated damages will accrue hereunder to the Purchaser with respect to the Primary Shares or Underlying Shares that plus all such interest thereon, are no longer Registrable Securitiespaid in full.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the 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. 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, in which case such registration shall be on another form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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).
(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 Purchaser 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 DateDate 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 2(b) herein, as the case may be (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, 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 issuance of Additional Notes (as defined in the Note), to 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 Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to (i) up to the 180th day following the Closing Date, 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement and (ii) on or after the 180th day following the Closing Date, 1.5% 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 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 daily 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to after April 2, 2003, upon receipt of a unanimous request from the Filing DateStockholders, the Company Parent shall prepare and file with the Commission SEC a Form S-3 registration statement (or, if Form S-3 is not then available to Parent, a registration statement on such other form as is then available to Parent for the registration for resale of the Registrable Shares) (the "Registration Statement Statement"), covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering up to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 Five Hundred Thousand (except if the Company is not then eligible to register for resale 500,000) of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Shares. The Company Parent shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under as soon as practicable after the Securities Act no later than filing. Subject to the Effectiveness Dateterms of this Agreement, and Parent shall use its commercially reasonable best efforts to keep cause the Registration Statement continuously to remain effective under the Securities Act until the date which is the earlier of (i) five years after the Effective Date, date on which all Registrable Shares covered by the Registration Statement have been sold to the public pursuant to the Registration Statement or (ii) such time as all 180 days after the Registration Statement becomes effective; PROVIDED, HOWEVER, that the reporting requirements of Rule 144(c) under the Registrable Securities Act 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) satisfied (the “Effectiveness "Registration Effective Period”").
(b) If for any reason On or after April 2, 2004, upon the Commission does not permit all receipt of a unanimous request from the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)Stockholders, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company Parent shall prepare and file as soon as possible after with 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 SEC a Registration Statement covering the resale of all remaining 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)Shares. The Company Parent shall use its commercially reasonable best efforts to cause each such the Registration Statement to be declared effective under the Securities Act as soon as possible butpracticable after the filing. Subject to the terms of this Agreement, in any event, no later than its Effectiveness Date, and Parent shall use its commercially reasonable best efforts to keep such cause the Registration Statement continuously to remain effective under until the Securities Act during its entire Effectiveness expiration of the Registration Effective Period.
(c) If: If (but without any obligation to do so) Parent proposes to register (including for this purpose a registration effected by Parent for stockholders other than the Stockholders) any of its stock under the Securities Act in connection with the public offering of such securities solely for cash (other than (i) a Registration Statement is not filed on registration relating solely to the sale of securities to participants in a Parent stock plan or prior to its Filing Date (if a transaction covered by Rule 145 under the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofSecurities Act, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement registration in which the only stock being registered is not declared effective by the Commission on or prior to its required Effectiveness Datecommon stock issuable upon conversion of debt securities which are also being registered, or (iiiiv) any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Shares), Parent shall, at such time, promptly give each Stockholder written notice of such registration. Upon the written request of each Stockholder given within twenty (20) days after its Effective Datemailing of such notice by Parent in accordance with Section 3.7, without regard for Parent shall cause to be registered under the reason thereunder or efforts therefor Securities Act all of the Registrable Shares that each such Stockholder has requested to be registered; PROVIDED, HOWEVER, that if such registration occurs prior to April 2, 2003, the Stockholder shall be entitled to include in such registration no more than 500,000 of the Registrable Shares. In addition, if the total amount of securities, including Registrable Shares, requested by stockholders to be included in such offering exceeds the amount of securities sold other than a Suspension Event by Parent that the underwriters reasonably determine is compatible with the success of the offering, then Parent shall be required to include in compliance with Section 6(c)the offering only that number of such securities, such Registration Statement ceases for any reason including Registrable Shares, which the underwriters reasonably determine will not jeopardize the success of the offering (the securities so included to be effective and available apportioned pro rata among the selling stockholders according to the Purchaser total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed 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 by such events (any such failure or breach being referred to as an “Event,” and for purposes of clauses (iselling stockholders) 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 issuance amount of Additional Notes (as defined securities of the selling Stockholders included in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof offering be reduced below ten percent (if the applicable Event shall not have been cured by such date10%) 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 Underlying Shares that are no longer Registrable Securitiestotal amount of securities included in such offering.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the first such Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to cause any subsequent such Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than sixty (60) days after the filing thereof. The Company shall use its reasonable commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the “each, an "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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser 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 Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior by the date required hereby with respect to its required Effectiveness Date, or such Registration Statement; (iii) after its Effective Date, without regard for a Registration Statement is filed with and declared effective by the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Commission, such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod 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 an aggregate a period of 20 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events 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 clauses clause (i) and or (ii) the 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 20 three (3) Trading Day period is exceeded, being referred to as “"Event Date”)"; provided, thenhowever, 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 that with respect to the Purchase Agreement from and including the Event Date but excluding the date on which referred to in clause (ii) above, the Event has been cured. For Date shall be extended for such time that the Effectiveness Date is delayed as a direct result of the Company receiving comments to the Registration Statement from the Commission that delays effectiveness of the Registration Statement so long as the Event Company has not been cured, liquidated damages will accrue at a rate of 0.50% per annum during promptly responded to 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 issuance of Additional Notes (as defined in the NoteCommission's comments), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to the terms hereof shall apply 2.0% for each thirty (30) day period (prorated for partial periods) on a pro rata daily basis for any portion of a month prior to the cure original principal amount of an each applicable Note. While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such liquidated damages shall ceasebe paid not less often than each thirty (30) days. The Any unpaid liquidated damages under as of the date when an Event has been cured by the Company shall be paid within three (3) days following the date on which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the Company shall 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 reissued free of restrictive legend upon notice of a sale by Laurus and confirmation by Laurus 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 blanket opinion required by this Section 2(c) shall be delivered to Laurus within 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 Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Payment Technologies Inc)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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 415Securities. 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, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its commercially 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 commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five three (3) years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the PurchaserPurchasers, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”"EFFECTIVENESS PERIOD"). The Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to remain eligible to use Form S-3 registration or a similar short-form registration.
(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(aSECTION 2(A), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, or if the Registration Statement ceases to be effective before the expiration of the Effectiveness Period, 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 commercially 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 use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior Each Purchaser agrees to its Filing Date (if furnish to the Company files a Registration Statement without affording completed Questionnaire in the Purchaser the opportunity form attached to review and comment on the same this Agreement as required by Section 3(a) hereof, the ANNEX A (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be deemed required to have satisfied this clause (i)), or (ii) include the Registrable Securities of a Purchaser in a Registration Statement is not declared effective by the Commission on or prior who fails to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available furnish to the Purchaser as to all Registrable Securities to which it is required to cover Company a fully completed Selling Holder Questionnaire at any time least six Trading Days prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events Filing Date (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 subject 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 requirements set forth in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the NoteSECTION 3(A), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Pardus Capital Management L.P.)
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 cause such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, by its Effectiveness Date.
(b) On or prior to the Filing Date contemplated in clause (b) of the definition of “Filing Date, ,” the Company shall prepare and file with the 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. 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, 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 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 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “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, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during until the date which is the earliest of (i) five years after its entire Effective Date, (ii) such time as all of the 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 for resale (or Form F-3 if then applicable to the Company), if the Company would then still be required to 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 “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 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 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) 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 Purchaser 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 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 DateDate (but not in the case of the 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 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(b) or Section 2(c) herein, as the case may be (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than therefor, a Suspension Event in compliance with Section 6(c), such Registration Statement filed pursuant to Section 2(b) or Section 2(c) ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder 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 issuance of Additional Notes (as defined in the Note), to 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 parties agree that the Company will 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 the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 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 requirements of piggy-back rights granted under predecessor agreements, first Event Date; provided, that the number 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 Registrable Securities the Purchase 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 Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 liquidated or other damages under any Section 2(d) as to such Registration Statements as to any Holder in connection therewith who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior If at any time after the 12-month anniversary of the Effective Date the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act and the Company receives a written request from an Investor Representative, on behalf of an Investor Group, that the Company register Registrable Securities under the Securities Act, then the Company shall, as promptly as reasonably practicable, but not later than the 45th day after receipt of such written request (any such date of filing, the “Filing Date”), the Company shall prepare and file with the Commission 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. 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, in which case such registration shall be be, at the election of the requesting Investor Representative, on behalf of the applicable Investors, on Form S-1 or another appropriate form for such purpose)) and, if the Company is a WKSI as of the Filing Date, shall be an Automatic Shelf Registration Statement. The Thereafter, the Company shall use its commercially reasonable best efforts to cause the any such Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as reasonably practicable but, in any event, no later than the Effectiveness DateDeadline, and shall use its commercially reasonable best efforts to keep the such 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 Company Class A Shares subject to this Article VI cease to be 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 At any reason time and from time to time on or after the Commission does not permit all 12-month anniversary of the Effective Date if the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act, upon the written request (a “Demand Notice”) of any Investor requesting that the Company effect an Underwritten Offering of Registrable Securities to be included in of the Registration Statement filed pursuant to Section 2(aInvestors (a “Demand Offering”), 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 use its commercially reasonable efforts to effect, as soon promptly 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 Datereasonably practicable, an additional Registration Statement covering Underwritten Offering of such Registrable Securities; provided, however, (w) at the resale time of all Registrable Securities not already covered by the Demand Offering, there shall be 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 Section 6.01(a) that covers the Registrable Securities on Form S-3for which a Demand Offering has been requested or the Company shall then be WKSI eligible, in which case such registration and (x) with respect to any Registrable Securities, the Company shall be on another appropriate form for obligated to effect no more than one Roadshow Offering in any 12-month period (provided, that if any such purpose). The Company shall use its reasonable best efforts to cause each such Registration Statement Roadshow Offering is reasonably likely to be declared effective under completed outside of such 12-month period, the Company’s obligations to effect such Demand Offering shall continue) and (y) the Registrable Securities Act as soon as possible but, in any event, no later for which a Demand Offering has been requested will have a value (based on the average closing price per share of Company Class A Shares for the ten trading days preceding the delivery of such Demand Notice) of not less than its Effectiveness Date, $50,000,000. Each such Demand Notice will specify the number of Registrable Securities owned by the demanding Investors and shall use its reasonable best efforts the number of Registrable Securities proposed to keep such Registration Statement continuously effective under be offered for sale and will also specify the Securities Act during its entire Effectiveness Periodintended method of distribution thereof.
(c) If: In the event of a Demand Offering, the Underwriters (iincluding the lead Underwriter) for such Demand Offering will be a Registration Statement is not filed nationally recognized investment bank selected by the demanding Investor Representative on or prior to its Filing Date (if behalf of the applicable Investors with the approval of the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company (which approval shall not be deemed to have satisfied this clause (iunreasonably withheld)), or (ii) a Registration Statement 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements Notwithstanding anything to the contrary in this Agreement, the Investors may not request a Demand Offering during a period commencing upon the date of 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 Investor Representatives that it so intends to publicly announce) an Underwritten Offering of Company Class A 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 6.02) and ending (i) 90 days after the consummation of such Underwritten Offering, (ii) 30 days after the Company has given notice to the Investor Representatives 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 Investor Representatives that the Company no longer intends to conduct an Underwritten Offering.
(e) The Investors will be permitted to rescind a Demand Notice or request the removal of any Registrable Securities held by them from any Demand Offering at any time (so long as, in the case of a Demand Offering, after such removal it would still constitute a Demand Offering, including with respect to the required value thereof under Section 6.01(b)); provided, however, that, if the Investors rescind a Roadshow Offering, such 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 this Section 2 may contain shares other than Registrable Securities 6.01, unless the Investors reimburse the Company for all Offering Expenses incurred by the Company in accordance connection with the requirements of piggy-back rights granted under predecessor agreements, such Roadshow Offering (provided, that the number of Registrable Securities Investors shall not be cutback under required to so reimburse the Company for the Company’s out-of-pocket expenses incurred to prepare and file any Registration Statement pursuant to Section 6.01(a) or any amendment thereto necessary to maintain the effectiveness of such Registration Statements as a result Statement or for the Company’s internal expenses (including all salaries and expenses of such piggy-back rightsits officers and employees performing legal or accounting duties)).
Appears in 1 contract
Sources: Shareholder Agreement (Digital Landscape Group, Inc.)
Registration. (a) On or prior to the Filing Date, the The Company shall use its best efforts to prepare and file with the Commission 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. The Registration Statement shall be on Form S-3 S-1, SB-2 or on such oth▇▇ ▇▇▇▇ ▇s is available within forty-five (except if the Company is not then eligible to register for resale 45) days after any of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)are issued. The Company shall use its reasonable best efforts to cause the SEC to declare such Registration Statement promptly thereafter.
(b) Until the earlier of the Termination Date or the date on which all Registrable Securities are eligible to be declared effective sold under Rule 144 within any ninety day period (the Securities Act no later than period from the Effectiveness Datedate hereof until the earlier of such dates, and the "Registration Period"), the Company 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. Such Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, on Form S-3 (except if or necessary to make the Company is not then eligible to register for resale the Registrable Securities on Form S-3statements therein, in light of the circumstances 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 under the Securities Act as soon as possible butthey were made, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodnot misleading.
(c) If: During the Registration Period, the Company shall use its best efforts to prepare and file with the SEC such amendments (iincluding post-effective amendments) a and supplements to the Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is not to be filed on or prior pursuant to its Filing Date (if Rule 424 promulgated under the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same 1933 Act, as may be required by Section 3(a) hereoflaw. Notwithstanding any provision herein to the contrary, the Company shall not be deemed to have satisfied be in violation of this clause Section 2(b) or any other provision of this Schedule if, at any time, the Company delivers to the Purchasers a notice (a "Suspension Notice") indicating that the Purchasers must suspend the use of any Registration Statement while the Company either amends or supplements such Registration Statement or files a new Registration Statement, provided that (i))) the Company determines, or upon advice of counsel, that such suspension is appropriate under applicable securities laws and (ii) the Company promptly seeks to take such action as it determines to be appropriate under such laws to enable the disposition of the Registrable Securities by the Purchasers. The Purchasers shall refrain from disposing of any Registrable Securities upon receipt of a Suspension Notice delivered in accordance with this Section 2(b).
(d) The Company shall furnish to each Purchaser without charge, (i) at least one copy of such Registration Statement is not as declared effective by the Commission on SEC and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus, (ii) one copy of the final prospectus included in such Registration Statement and all amendments and supplements thereto (or prior to its required Effectiveness Date, or such other number of copies as such Purchaser may reasonably request) and (iii) such other documents as such Purchaser may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Purchaser.
(e) As promptly as practicable after its Effective Datebecoming aware of such event or development, without regard for the reason thereunder Company shall notify the Purchasers in writing of the happening of any event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or efforts therefor other than omission to state a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason material fact required to be effective and available stated therein or necessary to make the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodstatements therein, 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 in light 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 circumstances under which the Event has been cured. For so long as the Event has they were made, 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 misleading (provided that in no event shall such rate exceed 1.00% per annumnotice contain any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver two (2) copies of such supplement or amendment to each Purchaser. The liquidated damages Company shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to also promptly notify the Purchaser of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(f) The Company shall use its best efforts either to cause all the Registrable Securities covered by a Registration Statement to be listed on each monthly anniversary securities exchange on which securities of each such Event Date thereof (the same class or series issued by the Company are then listed, if any, if the applicable Event shall not have been cured by listing of such date) until Registrable Securities is then permitted under the applicable Event is curedrules of such exchange or to secure the inclusion for quotation on the National Association of Securities Dealers, Inc. OTC Bulletin Board for such Registrable Securities. The liquidated damages pursuant to the terms hereof Company shall apply on a pro rata basis for any portion of a month prior to the cure of an Event other than pay all fees and expenses in connection with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages satisfying its obligation 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 Underlying Shares that are no longer Registrable Securities2(f).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to Upon the Filing Dateoccurrence of a Triggering Event, ------------ Issuer shall, at the Company shall prepare request of Grantee included in the Exercise Notice, as promptly as practicable prepare, file and file with the Commission keep current 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. 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, in which case such shelf 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 state ment under the Securities Act no later than covering all Option Shares issued and issuable pursuant to the Effectiveness Date, Option and shall use its best reasonable best efforts to keep cause such registration statement to become effective and remain current in order to permit the Registration Statement continuously sale or other disposition of any Option Shares issued upon exercise of the Option in accordance with any plan of disposition requested by Grantee; provided, however, that 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 or effectiveness would require the disclosure of material information that Issuer has a bona fide business purpose for preserving as ---- ---- confidential or would cause Issuer, at a time when Issuer is otherwise in compliance with all its obligations under this Section 8, to be in violation of the federal securities laws or the rules and regulations thereunder. Issuer will use its best reasonable efforts to cause such registration statement first to become effective under the Securities Act and then to remain effective for 270 days or until the such earlier date which is the earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities shares registered shall have been publicly sold by the PurchaserGrantee. In connection with any such registration, or (iii) Issuer and Grantee shall provide each other with representations, warranties, indemnities, contribution and other agreements customarily given in connection with such time as all of the Registrable Securities may be sold pursuant registrations. If requested by Grantee in connection with such registration, Issuer shall become a party to Rule 144(k) one underwriting agreement (the “Effectiveness Period”)managing underwriter(s) thereunder being approved by Issuer, such approval not to be unreasonably withheld or delayed) relating to the sale of such shares, but only to the extent of obligating Issuer in respect of representations, warranties, indemnities, contribution and other agreements customarily made by issuers in such underwriting agreements.
(b) If for any reason In the Commission does not permit all event that Grantee so requests, the closing of the Registrable Securities sale or other disposition of the Option Shares or other securities pursuant to be included in the Registration Statement a 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 8(a) shall occur substantially simultaneously with 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 exercise 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable SecuritiesOption.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. 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, 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 use its reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its reasonable best efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five years fifth year after the Effective Date, (ii) date that the Registration Statement is declared effective by the Commission or such time as earlier date when all of the Registrable Securities covered by the Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities 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), ) or for any other reason any all Registrable Securities then outstanding are not then included in a an effective Registration Statement filed under this AgreementStatement, 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 its the Filing DateDate 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 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 use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (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 failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Notes pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement Statement, for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities 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) but, in any event, no later than the its 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 eight years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 PeriodEFFECTIVENESS 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities 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) but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: 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 (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities 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) but, in any event, by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) In the event the Vizer \ Avurt Merger and, if necessary, the terms of the funding in excess of 19.9% of the Company’s equity as described in the Offering Memorandum have not been approved by the Company’s shareholders by November 30, 2006, Investors holding at least 50% of the minimum funding amount (following the closing of the minimum funding amount pursuant to the Offering Memorandum) may demand, on behalf of all Investors who participated in the Offering and who have not opted out of being included in the Registration Statement, that the Company prepare and file by the Filing Date for such Registration Statement, 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). 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 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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(e) If (i) a Registration Statement is not filed on or prior to its Filing Date Date, (if the Company files ii) with respect to a Registration Statement without affording the Purchaser the opportunity required to review and comment on the same as required by Section 3(abe filed pursuant to Sections 2(a) hereofor 2(b), the Company shall not be deemed Effective Date of the Registration Statement is later than 180 days after the Closing Date, (iii) with respect to have satisfied this clause (i)), or (ii) a Registration Statement required to be filed pursuant to Section 2(c), the Effective Date of the Registration Statement is not declared effective by later than 180 days after the Commission Company becomes eligible to use a registration statement on or prior Form S-3 to its required Effectiveness Date, register the Registrable Securities for resale or (iiiiv) after its Effective Date, without regard for the reason thereunder or efforts therefor other than with respect to a Suspension Event in compliance with Registration Statement required to be filed pursuant to Section 6(c2(d), such the Effective Date of the Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Periodlater than March 31, for an aggregate of 20 Trading Days for all such events 2007 (any such failure or breach being referred to as an “Event,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 exceededEvent occurs, being referred to as the “Event DateEVENT DATE”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long the Company shall pay to the Holders, as liquidated damages and not as a penalty, a fee (payable in cash) equal to the product of (w) 2%, multiplied by (x) the number of months, or portion thereof that the Filing Date or the Effective Date is delayed (but not to exceed five months), multiplied by (y) the number of Units that the Registrable Securities owned by the Holder comprised, and multiplied by (z) the Unit Price; provided that with respect to Note Units such event damages shall equal the product of (w) 2%, multiplied by (x) the number of months, or portion thereof that the Filing Date or the Effective Date is delayed (but not to exceed five months), multiplied by (y) the principal amount of notes contained within the Effectiveness Period, liquidated damages Note Units that the Registrable Securities owned by the Holder comprised. In no event will accrue based on the Purchase Price aggregate fee payable by the Company under this Section 2(e) exceed 10% of the affected Registrable Securities purchase price paid by the Purchaser Holders for the Units pursuant to the Purchase Subscription Agreements.
(f) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement from 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 including shall not be required to pay any damages under Section 2(e) to any Holder who fails to furnish to the Event Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date but excluding (subject to the date on which the Event has been cured. requirements set forth in Section 3(a)).
(g) 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 purposes of the Event Date and shall increase by 0.50% per annum at obligations of the end of each subsequent 90-day periodCompany under this Agreement, but in no event shall such rate exceed 1.00% per annum. The liquidated damages Registration Statement shall be due considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as “Selling Stockholders” and payable in cash or through the issuance of Additional Notes (includes such other information as defined in the Note)is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement. Such Registration Statement also shall cover, to the Purchaser on each monthly anniversary extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act Rule 416), such indeterminate number 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 additional shares of a month prior to the cure of an Event other than Common Stock resulting from stock splits, stock dividends or similar transactions 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the offering and resale of all of the 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, or if Rule 415 is not available for offers or sales of the Registrable Securities, for such other means of distribution of Registrable Securities as the Holders may specify. The Registration Statement required hereunder shall be on Form S-3 or Form F-3, as applicable (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-3 or Form F-3, in which case such registration the Registration shall be on Form S-1 or F-1 or another appropriate form for such purposeas shall be selected by the Company upon advice of its counsel). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but no later than 120 days following the Effectiveness Datefiling thereof, 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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(cincluding the filing of any necessary amendments, post-effective amendments and supplements) If: until the date which is two years after the Closing Date or such later date when all Registrable Securities covered by the Registration Statement (i) a have been sold pursuant to the Registration Statement is not filed on or prior to its Filing Date (if an exemption from the Company files a Registration Statement without affording registration requirements of the Purchaser 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)), Securities Act or (ii) may be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act, 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”). If Rule 415 is not available and the Holder shall specify that the Registration Statement is not declared effective by relate to an underwritten offering, then the Commission on or prior to its required Effectiveness DateCompany shall, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 periodunderwriter’s request, but direct its Chief Executive Officer and Chief Financial Officer to participate in no event shall such rate exceed 1.00% per annum. The liquidated damages one or more “road show” presentations, which presentations shall be due and payable in cash or through conducted at the issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable SecuritiesCompany’s expense.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 F-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 F-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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).
(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 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) 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 Purchaser 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 2(c) herein, as the case may be (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder 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 issuance of Additional Notes (as defined in the Note), to 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; 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 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 the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 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 requirements of piggy-back rights granted under predecessor agreements, first Event Date; provided, that the number 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 Registrable Securities the Purchase 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 Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement Statement, for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 eight years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 PeriodEFFECTIVENESS 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: 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 (ior 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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 i)(such failure or breach being referred to as an “Event,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 exceededEvent occurs, being referred to as the “Event DateEVENT DATE”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long the Company shall issue to the holders of the Registrable Securities, as such event is within the Effectiveness Period, 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 accrue based on have a per share exercise price equal to the Purchase Price lower of (a) the average of the affected 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 paid by the Purchaser pursuant of a Holder in a Registration Statement and shall not be required to issue any Additional Warrants or other damages under Section 2(d) to any Holder who fails to furnish 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 Company a fully completed Selling Holder Questionnaire 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 issuance of Additional Notes (as defined in the Note), to 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 least two Trading Days prior to the cure of an Event other than with respect Filing Date (subject to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this requirements set forth in 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 Underlying Shares that are no longer Registrable Securities3(a)).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Daybreak Oil & Gas Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. 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, in which case such registration shall be on another an appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 an 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and and/or available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on and not as a penalty, equal to 1.0% (subject to reduction as provided in the Purchase Price following sentence) of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior Following the Closing Date the Buyer shall use its commercially reasonable best efforts to the Filing Date, the Company shall prepare and file with the 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 not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement Buyer 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, in which case cause 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 Dateas soon as possible, 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 one year after the Effective Closing Date, (ii) such time as all of the Registrable Securities registered Buyer Shares covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities may be sold registered Buyer Shares become eligible for resale by non-affiliates pursuant to Rule 144(k) 144 (the “Initial Effectiveness Period”).
(b) If for any reason Following the Commission does not permit all of Earnout Payment Date the Registrable Securities Buyer shall use its commercially reasonable best efforts 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 with the Commission 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 madebut, but in any event by its event, no later than the Filing DateDeadline, an additional a Registration Statement on Form S-3 covering the resale of all Earnout Shares issued under Exhibit E to the Agreement that are 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 Buyer 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 Datepossible, and shall use its reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act during its entire until the date which is the earlier of (i) one year after the Earnout Payment Date, (ii) such time as all of the registered Earnout Shares covered by such Registration Statement have been sold by the Holders, or (iii) such time as all of the registered Earnout Shares become eligible for resale by non-affiliates pursuant to Rule 144 (the “Subsequent Effectiveness Period”).
(c) If: (i) As a condition precedent to the inclusion of each Holder’s Registrable Securities in the 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 Section 3(a) hereofStatement, the Company Holder 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective complete and available deliver to the Purchaser as to all Registrable Securities to which it is required to cover at any time Buyer not less than five Business Days prior to the expiration filing of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events the Registration Statement a completed Questionnaire in the form attached to this Agreement as Annex A (any such failure or breach being referred to as an a “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 DateSelling 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, then, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price obligation of the affected Registrable Securities paid by the Purchaser pursuant Buyer 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 issuance of Additional Notes (as defined in the Note), to 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 register 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsHolder’s Registreable Securities under the Agreement shall terminate.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. The parties agree that a registration statement filed in accordance with the Existing Registration Rights Agreement, which includes Registrable Securities hereunder, shall be a Registration Statement which for purposes of such Registrable Securities satisfies the Company’s obligations under this Section 2(b) with respect to such included Registrable Securities.
(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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, 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 issuance of Additional Notes (as defined in the Note), to 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 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 pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under this Section 2 may contain shares other than 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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period. The parties agree that a registration statement filed in accordance with the requirements of piggy-back rights granted under predecessor agreementsExisting Registration Rights Agreement, provided, that the number of which includes Registrable Securities hereunder, shall be a Registration Statement which for purposes of such Registrable Securities satisfies the Company’s obligations under this Section 2(d).
(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 cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the each, an “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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser 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 Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior by the date required hereby with respect to its required Effectiveness Date, or such Registration Statement; (iii) after its Effective Date, without regard for a Registration Statement is filed with and declared effective by the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Commission, such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod 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 45 days in the aggregate per year or more than 30 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 an aggregate a period of 20 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events 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 clauses clause (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 45 day or 30 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iv) the date on which such 20 three (3) 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to the terms hereof shall apply 2.0% for each thirty (30) day period (prorated for partial periods) on a pro rata daily basis for any portion of a month prior to the cure original principal amount of an each applicable Note. While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such liquidated damages shall ceasebe paid not less often than each thirty (30) days. The Any unpaid liquidated damages under as of the date when an Event has been cured by the Company shall be paid within three (3) days following the date on which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the Company shall 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 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 blanket opinion required by 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Maxim Mortgage Corp/)
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the 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. 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, (other than in which the case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best efforts to cause of the Registration Statement to be declared effective filed 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 this Section 2(a), or the Escrow Shares unless the applicable Delivery Date for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company such shares 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 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, on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 and the disclosure attached hereto as Annex C. 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 use its reasonable best efforts to keep the Registration Statement continuously effective during the entire Effectiveness Period. 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 inclusion of the Shares in such initial Registration Statement shall take precedence over and shall not be cut back until the following securities of the Company are cut back and removed from such Registration Statement (in the following order): (i) all other Registrable Securities and (ii) any securities of the Company to be included in such Registration Statement pursuant to Section 6(b). 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 (other than the Escrow Shares unless the Delivery Date shall have occurred) 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 Registable 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. In the event that the amount of securities which may be included in any such Registration Statement is limited due to Commission Comments, the inclusion of the Shares in such Registration Statement shall take precedence over and shall not be cut back until the following securities of the Company are cut back and removed from any such Registration Statement (in the following order): (i) all other Registrable Securities (other than the Escrow Shares) and (ii) any securities of the Company to be included in such Registration Statement pursuant to Section 6(b). 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 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 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 keep such Registration Statement continuously effective under the Securities Act during its 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 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).
(c) 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 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 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 and the disclosure attached hereto as Annex C. 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 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).
(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 Escrow Shares on Form S-1 or 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 and the disclosure attached hereto as Annex C. 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).
(e) If: (i) a Registration Statement is not filed on or prior to its applicable Filing Date covering the Registrable Securities required under this Agreement to be included therein (if the Company files a Registration Statement without affording the Purchaser 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 DateDate or if by the Business Day immediately following the applicable 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), (b), (c) or (d) herein, as the case may be, (whether or not such a prospectus is technically required by such Rule), or (iii) after its applicable Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all the Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long as then in addition to any other rights the Holders may have hereunder or under applicable law: on each 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) and for each calendar month or portion thereof thereafter from the Event 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 Original Purchase Price paid by such Holder for Securities pursuant to the Purchase Agreement; provided, however, that the total amount of partial liquidated damages payable by the Company pursuant to all Events under this Section shall be capped at an aggregate of 10.0% of the aggregate Original Purchase Price paid by the Investors under the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than except in the case of the first Event Date. In no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Investment Amount of the Investors in any 30-day period. The Company will not be liable for liquidated damages under this Agreement with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall ceasePlacement Agent Warrant Shares. The Company shall not be 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(c2(e) shall once again apply, if applicable. Liquidated damages payable by the Company pursuant to this Section 2(e) shall be payable on the sole and exclusive remedy first (1st) Business Day of each thirty (30) day period following 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 Underlying Shares that are no longer Registrable SecuritiesEvent Date.
(df) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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(e) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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 (Longwei Petroleum Investment Holding LTD)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the “each, an "Effectiveness Period”").
(b) If for any reason the Commission does not permit all Within three business days 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, 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 deemed to have satisfied this clause (i)), or (ii) reissued free of restrictive legend upon notice of a Registration Statement is not declared effective sale by the Commission on 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 prior to its in writing that the opinion has been withdrawn. Copies of the blanket opinion required Effectiveness Date, or (iiiby this Section 2(b) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to shall be effective and available delivered to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Xstream Beverage Network, Inc.)
Registration. (a) On or prior to the its applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities (including Contingent Payment Stock, whether or not such Contingent Payment Stock is then issuable) not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement required to be filed under this Agreement shall be filed on Form S-3 S-1 (except or if the Company is not then eligible to register for resale utilize Form S-3 promulgated under the Registrable Securities Act, on Form S-3, in which case or if another form of registration is required, it shall utilize such registration shall be on another other available form appropriate form 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) a “Plan of Distribution” section in substantially the form attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the each Registration Statement required 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 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 under the Securities Act 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).
(b) If for any reason 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.
(c) If: (i) a Registration Statement is not filed on or prior Each Holder agrees to its Filing Date (if furnish to the Company files a Registration Statement without affording completed Questionnaire in substantially the Purchaser the opportunity form attached to review and comment on the same this Agreement as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause Annex B (i)), or (ii) a Registration Statement 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 DateSelling Holder Questionnaire”), 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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”"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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event"EVENT,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “Event "EVENT Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 two years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(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 keep such Registration
(d) 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares at closing pursuant to the Purchase Agreement from Loan Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a Registration Statement on an appropriate form covering the resale of all the 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. 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, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its reasonable best commercial efforts to cause the Registration Statement to be declared effective under the Securities Act no later than as promptly as possible after the Effectiveness Date, and filing thereof. The Company shall use its reasonable best commercial efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the Registrable Securities may be sold immediately without registration under the Securities Act pursuant to Rule 144(k) 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 “"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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its the 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 Section 3(a) hereof, the Company shall pay to each Holder an amount in cash, as liquidated damages and not be deemed as a penalty, equal to have satisfied this clause (i)), or (ii) a 1% of such Purchaser's purchase price of the Company Common Stock. If the Registration Statement is not declared effective by the Commission filed on or prior to its required Effectiveness Date, or 30 calendar days from the date of this Agreement (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 exceededEvent occurs, 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to 4% of such Purchaser's purchase price of the terms hereof Company Common Stock for such thirty (30) day period (prorated for partial period), which liquidated damage amount shall apply on a pro rata basis increase to 5% for any portion of a month prior to the cure of an each subsequent 30 day period (prorated for partial periods). While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such liquidated damages shall ceasebe paid not less often than each thirty (30) days.
(c) Within five (5) business days of the Effectiveness Date, the Company shall 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 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. The liquidated damages under Copies of the blanket opinion required by 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Eagle Broadband Inc)
Registration. (ai) On or prior Following (i) the Closing and (ii) receipt of the Required Company Information, Parent shall use commercially reasonable efforts to the Filing Date, the Company shall prepare and (A) file with the Commission SEC a registration statement as soon as practicable after the Closing Date but no later than 30 days after the Closing Date with respect to the public resale by the Participating Securityholders of all of the shares of Parent Common Stock that are to be issued to such Participating Securityholders in connection with the payment of the Stock Upfront Merger Consideration Amount, and (B) file with the SEC a registration statement with respect to the public resale by the Participating Securityholders of all of the shares of Parent Common Stock that may be issued to such Participating Securityholders in connection with the payment of the PKU Enrollment Milestone Payment as soon as practicable after the date of the Milestone Notice with respect to the applicable Milestone Event but no later than 30 days after such date; provided, that in the event Parent is engaged in an activity described in Section 5.11(c)(i) or (ii) below and Parent determines that such activity makes it not practicable for Parent to file such Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective within such 30-day period, Parent may delay such filing until it becomes practicable for Parent to file such Registration Statement for an offering to be made Statement, but in any case no later than 90 days after such date, in each case on a continuous or delayed basis pursuant to Rule 415. The Registration Statement shall be 415 under the Securities Act, in respect of which Parent may use a registration statement on Form S-3 (except if or any successor form registration statement available for such resale which permits incorporation by reference of Parent’s filings with the Company SEC to at least the same extent as such form) to the extent Parent is not then eligible to register for resale the Registrable Securities on Form S-3its use (each, in which case a “Registration Statement”), and cause 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 become automatically effective under the Securities Act no later than the Effectiveness Dateupon filing if eligible to do so or if not eligible to do so, and shall then use its commercially reasonable best efforts to keep the take such actions as are necessary to cause such Registration Statement continuously effective under to become effective. Parent shall cause all such Parent Common Stock to be listed on NASDAQ so long as Parent Common Stock are listed on NASDAQ.
(j) Parent shall maintain the Securities Act continuous effectiveness of each Registration Statement (and maintain the current status of the prospectus or prospectuses contained therein) until the date which that is the six (6) month anniversary of the Closing Date or the date of the Milestone Notice with respect to the PKU Enrollment Milestone Payment, as applicable, or such earlier of (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities shares of Parent Common Stock covered by the Registration Statement have been publicly sold by pursuant thereto; provided, that the Purchaser, obligation to keep such Registration Statement effective under this Section 5.11(b) shall not apply during the pendency of any Force Majeure Event to the extent such Force Majeure Event is the reason for or (iii) cause of an inability to keep such time as all Registration Statement effective. Parent will promptly notify the Securityholders’ Representative of the Registrable Securities may be sold pursuant time the Registration Statement became effective or a supplement to Rule 144(k) (any prospectus forming a part of the “Effectiveness Period”)Registration Statement has been filed.
(bk) Parent may, by written notice to the Participating Securityholders, suspend the use of the Registration Statement after effectiveness and require that the Participating Securityholders immediately cease sales of shares pursuant to the Registration Statement, in the event that (i) Parent engages in a public offering of its securities (an “Offering Suspension”) or (ii) Parent is engaged in any activity, matter or transaction or preparations or negotiations for any activity, matter or transaction that Parent desires to keep confidential for business reasons, if Parent determines in good faith, upon advice of counsel, that the public disclosure requirements imposed on Parent under the Securities Act in connection with the Registration Statement would require disclosure of such activity, transaction, preparations or negotiations (a “Confidentiality Suspension”). Each Participating Securityholder agrees to keep and hold confidential the fact of, and any information contained or referenced in, any such notice described in this Section 5.11(c). Parent may suspend the use of the Registration Statement by requiring Participating Securityholders to cease sales of shares of Parent Common Stock upon notice to such Participating Securityholders of an Offering Suspension or a Confidentiality Suspension, provided that such suspensions, taken together, are not used more than three times in the aggregate or for more than thirty (30) Business Days in the aggregate.
(l) If for any reason Parent suspends the Commission does not permit all use of the Registrable Securities Registration Statement by notice to the Participating Securityholders and requires the Participating Securityholders to cease sales of shares pursuant to this Section 5.11, Parent shall, as promptly as practicable following the termination of the circumstance which entitled Parent to do so, take such actions as may be necessary to reinstate the effectiveness of the Registration Statement and/or give written notice to all Participating Securityholders authorizing them to resume sales pursuant to the Registration Statement. If as a result thereof the prospectus included in the Registration Statement filed has been amended to comply with the requirements of the Securities Act, Parent shall enclose such revised prospectus with the notice to Participating Securityholders given pursuant to this Section 2(a5.11(d), and the Participating Securityholders shall make no offers or for any other reason any Registrable Securities are not included in a sales of shares pursuant to the 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 other than by means of 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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodrevised prospectus.
(cm) If: Promptly following the filing by Parent of the Registration Statement, Parent shall furnish to each Participating Securityholder a copy of the prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act. Parent shall promptly provide the Participating Securityholders with revised or supplemented prospectuses and, following receipt of the revised or supplemented prospectuses, the Participating Securityholders shall be free to resume making offers and sales under the Registration Statement. Parent shall pay the expenses incurred by it in complying with its obligations under this Section 5.11, including all registration and filing fees, exchange listing fees, fees and expenses of counsel for Parent, and fees and expenses of accountants for Parent, but excluding (i) a any brokerage fees, selling commissions or underwriting spread or discounts incurred by the Participating Securityholders in connection with sales under the 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 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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) the fees and expenses of any counsel retained by or on behalf of the Participating Securityholders. Each Participating Securityholder shall pay any expenses incurred by it in connection with the performance of its obligations under or in compliance with this Section 5.11.
(n) Parent shall not be required to include any shares of Parent Common in the Registration Statement unless:
(i) the Participating Securityholder owning such shares furnishes to Parent in writing such information regarding such Participating Securityholder and the proposed sale of Parent Common Stock by such Participating Securityholder as Parent may reasonably request in writing in connection with the Registration Statement or as shall be required in connection therewith by the SEC or any state securities law authorities; and
(ii) such Participating Securityholder shall have provided to Parent its written agreement (in form and substance satisfactory to Parent) to (A) indemnify Parent and each of its directors and officers against, and hold Parent and each of its directors and officers harmless from, any losses, claims, damages, expenses or liabilities (including reasonable attorney’s fees) to which Parent or such directors and officers may become subject by reason of any statement or omission in the Registration Statement made in reliance upon, or in conformity with, a written statement by such Participating Securityholder furnished pursuant to this Section 5.11, and (B) report to Parent sales made pursuant to the Registration Statement, which report may be made to Parent’s transfer agent in connection with such sales.
(o) Solely for purposes of clause (iii) the date on which such 20 Trading Day period Section 5.11, if any Parent Common Stock 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 issuance of Additional Notes (as defined included in the Note), to 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 Registration Statement under this Section 2(c) shall 5.11, Parent agrees to indemnify and hold harmless each Participating Securityholder whose shares are included in the Registration Statement against any Losses, to which such Participating Securityholder may become subject by reason of any untrue statement of a material fact contained in the Registration Statement or any omission to state therein a fact required to be stated therein or necessary to make the sole and exclusive remedy statements therein not misleading, except insofar as such losses, claims, damages, expenses or liabilities arise out of or are based upon information furnished to Parent by or on behalf of the Purchaser under this Agreement Company or a Participating Securityholder for an Eventuse in the Registration Statement. Notwithstanding Parent shall have the foregoing, no liquidated damages will accrue hereunder right to assume the Purchaser with respect to the Primary Shares defense and settlement of any claim or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements suit for which Parent may be responsible for indemnification under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights5.11.
Appears in 1 contract
Sources: Agreement and Plan of Merger (PTC Therapeutics, Inc.)
Registration. (a) On Subject to the limitations set forth in this Section 2(a) and in Section 2(b) below, on or prior to the Filing Date, the Company shall prepare and file with the Commission a the Registration Statement covering the resale of all of the 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. The Registration Statement required hereunder shall be on Form S-3 the appropriate form for which the Company is eligible (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration the Registration shall be on another appropriate form for such purposeForm S-3 in accordance herewith). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Exhibit B. The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its commercially reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no as promptly as possible after the filing thereof, but in any event not later than the Effectiveness Date, and shall use its commercially 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) Closing Date or such time as earlier date when all of the Registrable Securities covered by the Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities 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 Notwithstanding anything to the contrary set forth in Section 2(a) above, the Company shall not be obligated to prepare or file any reason the Commission does not permit all of the Registrable Securities to be included in the Registration Statement filed registration statement pursuant to Section 2(a) hereof, or to prepare or file any amendment or supplement thereto, and the Holders agree that they shall not sell any Registrable Securities, at any time when the Company, in the good faith and reasonable judgment of its Board of Directors, and upon the advice of counsel, reasonably believes that the filing thereof at that time, or the offering or sale of Registrable Securities pursuant thereto, (a) would materially adversely affect a pending or proposed public offering of capital stock of the Company, or an acquisition, merger, recapitalization, consolidation, reorganization or other transaction, or any negotiations, discussions or pending proposals with respect thereto, or (b) would require the disclosure of information that would have a material adverse effect on the Company, is likely to materially adversely affect the Company or any pending transaction or negotiations of the Company, or would constitute a violation of the Securities Act or any state or other applicable securities laws; provided, however, that the filing of a registration statement, or any supplement or amendment thereto, by the Company may be deferred pursuant to this Section 2(b), or for any other reason any and the restrictions on the sale of Registrable Securities are by the Holders shall be effective, only for the minimum period of time necessary under the circumstances, but not included to exceed sixty (60) days and in a Registration Statement filed under this Agreementany event no more than two deferrals shall be allowed in any twelve (12) month period. In the case of any such delay, then the Company shall prepare and file as soon as possible after deliver to the date on which Holders a written certificate of the Commission shall indicate as being the first date or time Company’s Chief Executive Officer certifying that such filing may be made, but delay is necessary in any event by its Filing Date, an additional Registration Statement covering the resale good faith and reasonable judgment 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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodCompany's Board of Directors.
(c) If: (i) a Registration Statement is not filed on or prior required 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required Effectiveness within six months of the Closing Date, or (iiiii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement is first declared effective by the Commission, it ceases for any reason to be remain continuously effective and available to the Purchaser as to all Registrable Securities to for which it is required to cover at any time prior be effective, or the Holders are not permitted to utilize the expiration of its Effectiveness PeriodProspectus therein to resell such Registrable Securities, for an aggregate of 20 in any such cases fifteen Trading Days for all such events (which need not be consecutive days) in the aggregate during any 12-month period (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and (ii) the date on which such Event occurs, or for purposes of clause (iiiii) the date on which such 20 fifteen Trading Day period is exceeded, exceeded being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1% of the affected Registrable Securities aggregate purchase price paid by the Purchaser such Holder pursuant to the Purchase Agreement from for any Shares 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 Warrants and/or Warrant Shares then held by such Holder; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 , 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 terms hereof shall apply on a pro rata basis Purchase Agreement for any portion Shares and Warrants and/or Warrant Shares then held by such Holder; provided, however, liquidated damages payable to any Holder hereunder shall not exceed 25% of a month prior the aggregate purchase price paid by such Holder pursuant 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 Purchase Agreement for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder Shares and Warrants and/or Warrant Shares issued to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securitiessuch Holder.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 [SB-2] (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 during the entire 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 [SB-2] (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior to its the Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, the Company Registration Statement shall not be deemed to have satisfied not filed within the meaning of this clause (i)), ; or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date, ; or (iii) after its Effective DateDate and during the Effectiveness Period, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 2% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 2% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement, provided, however, that the Company shall not be 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 partial 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 pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for in accordance herewith). The Company shall (i) with respect to the 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 purpose)Registration Statement to become A&R Registration Rights Agreement 3 effective as provided herein; provided that, such Registration Statement shall be required to remain effective as provided herein notwithstanding the use of best efforts by the 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 reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the each, an “Effectiveness Period”).
(b) If for any reason the Commission does not permit all Within three business days 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, 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 deemed to have satisfied this clause (i)), or (ii) reissued free of restrictive legend upon notice of a Registration Statement is not declared effective sale by the Commission on 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 prior to its in writing that the opinion has been withdrawn. Copies of the blanket opinion required Effectiveness Date, or (iiiby this Section 2(b) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to shall be effective and available delivered to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Accentia Biopharmaceuticals Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the “each, an "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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser 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 Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the applicable Effectiveness Date, or ; (iii) after its Effective Datea Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder a Discontinuation Event (as hereafter defined) shall occur and be continuing, or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective), for an 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 20 365 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 for all (provided the Company shall not have been able to cure such events 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 clauses clause (i) and or (ii) the 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 20 three (3) Trading Day period is exceeded, being referred to as “"Event Date”"), thenthen 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 shall pay to the Purchaser for so long as each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of: (A) the original principal amount of each Minimum Borrowing Note outstanding at such time multiplied by (B) 0.015. In the event is within the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such payments shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full.
(b) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price Company shall 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 reissued free of the affected Registrable Securities paid restrictive legend upon notice of a sale by the Purchaser pursuant to and confirmation by the Purchase Agreement from and including Purchaser that it has complied with the Event Date but excluding prospectus delivery requirements, provided that the date on which Company has not advised the Event transfer agent orally or in writing that the opinion has been curedwithdrawn. 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 Copies of the Event Date and shall increase blanket opinion required 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 issuance of Additional Notes (as defined in the Note), to 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Minimum Borrowing Note Registration Rights Agreement (Incentra Solutions, Inc.)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the “each, an "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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser 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 Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the applicable Effectiveness Date, or ; (iii) after its Effective Datea Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder a Discontinuation Event (as hereafter defined) shall occur and be continuing, or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective), for an 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 20 365 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 five (5) consecutive Trading Days for all (provided the Company shall not have been able to cure such events 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 clauses clause (i) and or (ii) the 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 20 three (3) Trading Day period is exceeded, being referred to as “"Event Date”"), thenthen 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 shall pay to the Purchaser for so long as each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of: (A) the original principal amount of each Minimum Borrowing Note outstanding at such time multiplied by (B) 0.01. In the event is within the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such payments shall bear interest at the rate of 1% per month (prorated for partial months) until paid in full.
(b) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price Company shall 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 reissued free of the affected Registrable Securities paid restrictive legend upon notice of a sale by the Purchaser pursuant to and confirmation by the Purchase Agreement from and including Purchaser that it has complied with the Event Date but excluding prospectus delivery requirements, provided that the date on which Company has not advised the Event transfer agent orally or in writing that the opinion has been curedwithdrawn. 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 Copies of the Event Date and shall increase blanket opinion required 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 issuance of Additional Notes (as defined in the Note), to 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Minimum Borrowing Note Registration Rights Agreement (Pacific Cma Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 1.5% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement, up to a maximum of 9% per Holder per annum of the aggregate purchase price 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 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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 Biopharmaceuticals Holdings Inc)
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a "shelf" 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. The Registration Statement shall be on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3SB-2, in which case such registration shall be on another appropriate form for such purposein 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 reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than (including filing with the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective Commission a request for acceleration of effectiveness in accordance with Rule 12dl-2 promulgated under the Securities Exchange Act until within five (5) Business Days of the date which that the Company is the earlier of notified (iorally or in writing, whichever is earlier) 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 that a Registration Statement filed under this Agreement, then the Company shall prepare and file will not be "reviewed," or not be subject to further review) 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 madethereof, but in any event by its Filing Date, an additional Registration Statement covering prior to 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 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 such Registration Statement continuously effective under the Securities Act during its entire until such date as is the earlier of (x) the 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 pursuant to Rule 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 "Effectiveness Period.
(c) If: (i) a "). If an additional Registration Statement is not required, for any reason, to be filed on or prior to its Filing Date (if because the Company files a Registration Statement without affording actual number of shares of Common Shares and Warrant Shares exceeds the Purchaser number of shares of Common Stock initially registered in respect of the opportunity to review Common Shares and comment the Warrant Shares based upon the computation on the same as required by Section 3(a) hereofClosing Date, the Company shall not be deemed have twenty (20) Business Days to have satisfied this clause (i))file such additional Registration Statement, or (ii) a and the Company shall use its best efforts to cause such additional Registration Statement is not to be 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 soon 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 periodpossible, 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 issuance of Additional Notes later than thirty (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date30) 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 Underlying Shares that are no longer Registrable Securitiesdays after filing.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Virtual Communities Inc/De/)
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the 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. The Each Registration Statement required to be filed under this Agreement shall be filed on Form S-3 S-1 (or on such other form appropriate for such purpose) and contain (except if otherwise required pursuant to written comments received from the Company is Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not then eligible to register for resale occur without such Holder’s written consent) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the each Registration Statement required 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 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.
(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 for as many Holders as possible to be included in the Registration Statement 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 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 (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration 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”). 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(d) 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 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 keep such Registration Statement continuously effective under the Securities Act during its 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 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).
(cd) 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 Purchaser 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 the terms hereof (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long as on each 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 issuance of Additional Notes (as defined in the Note), to 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 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 (1) the Company will not be liable for liquidated damages under this Agreement with respect to any (i) warrants issued to any placement agent as compensation in connection with the financing that is the subject of the Purchase Agreement or (ii) Placement Agent Warrant Shares and (2) in no event will the 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 a Holder under this Agreement shall be eight percent (8%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to (except in 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 case of the Purchaser under this Agreement for an Event. Notwithstanding first Event Date), and shall cease to accrue (unless earlier cured) upon the foregoing, no liquidated damages will accrue hereunder to expiration of the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesEffectiveness Period.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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 (Lightscape Technologies Inc.)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the each, an “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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser 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 Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the applicable Effectiveness Date, or ; (iii) after its Effective Datea Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder a Discontinuation Event (as hereafter defined) shall occur and be continuing, or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective), for an a period of time which shall exceed 30 days in the aggregate per year (defined as a period of 365 days commencing on the date such Registration Statement is declared effective) or more than 20 consecutive calendar days; or (iv) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for a period of five (5) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market) (any such failure or breach as described in clauses (i) through (iv) being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the 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 20 five (5) 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), thenthe Company shall pay to the Purchaser, as liquidated damages and not as a penalty, for so long as each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of (A) the original principal amount of each applicable Minimum Borrowing Note multiplied by (B) 0.02. In the event the Company fails to make any payments pursuant to this Section 2(b) in a timely manner, such event is within payments shall bear interest at the rate of 1.0% per month (prorated for partial months) until paid in full.
(b) Within three business days of the Effectiveness Period, liquidated damages will accrue based on Date and each request by Purchaser in the Purchase Price event it desires to exercise any of the affected Registrable Securities paid Warrants, the Company shall cause its counsel to issue an 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 reissued free of restrictive legend upon notice of a sale by the Purchaser pursuant to and confirmation by the Purchase Agreement from and including Purchaser that it has complied with the Event Date but excluding prospectus delivery requirements, provided that the date on which Company has not advised the Event transfer agent orally or in writing that the opinion has been curedwithdrawn. 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 Copies of the Event Date and shall increase blanket opinion required 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 issuance of Additional Notes (as defined in the Note), to 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Minimum Borrowing Note Registration Rights Agreement (Iwt Tesoro Corp)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 earliest of (i) five years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 Registration Statement filed pursuant to Section 2(a), or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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).
(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 Purchaser 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 DateDate 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) (whether or not such a prospectus is actually required by such Rule), or (iii) (A) after its Effective Date, for the first two years after the Closing Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness PeriodPeriod for more than an aggregate of 30 Trading Days (which need not be consecutive), or (B) after its Effective Date, and subsequent to the second anniversary of the Closing 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 expiration of its Effectiveness Period for more than an aggregate of 20 Trading Days for all such events (which need not be consecutive); provided, that any Trading Days not used towards the 30 Trading Day-period in subsection (iii)(A) may not be carried forward and used to extend the 20 Trading Day-period in subsection (iii)(B) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 30 or 20 Trading Day period Day-period, as applicable, is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Securities pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 1.5% of the aggregate Investment Amount paid by such Holder for Securities pursuant to the Purchase Agreement; provided, however, that the total amount of partial liquidated damages payable by the Company pursuant to all Events under this Section shall be capped at an aggregate of 10% of the aggregate Investment Amount paid by the Holders under the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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 (Metretek Technologies Inc)
Registration. (a) On or prior to Following the Filing Date, date hereof the Company shall use its commercially reasonable best efforts to prepare and file with the Commission a Registration Statement on Form S-3 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. 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, 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 such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness DateDeadline, 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 one year after the Effective Closing Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, or (iii) such time as all of the Registrable Securities may be sold become eligible for resale by non-affiliates pursuant to Rule 144(k) 144 (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 If: 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 the Effectiveness DateDeadline, or (iiiii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days 45 days (which need not be consecutive days) during any three-month period or for all such events 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 clauses clause (i) and (ii) the date on which such Event occurs, or for purposes of clause (iiiii) the date on which such 20 Trading Day the applicable period is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, 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 issuance of Additional Notes (as defined in the Note), to 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 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. 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 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 pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(dc) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements Agreement as Annex B (a result of such piggy-back rights“Selling Holder Questionnaire”).
Appears in 1 contract
Registration. (ai) On or prior to the Filing Date, the The Company shall prepare and file or cause to be prepared and filed with the Commission Commission, no later than December 31, 2025 (the “Filing Deadline”), a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement 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”). The Resale Registration Statement shall be on Form S-3 (except F-3 or, if the Company use of Form F-3 is not then eligible available to register the Company, on Form F-1 or such other appropriate form permitting registration of such Registrable Securities for resale by the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Holder. The Company shall use its reasonable best efforts to cause the Resale Registration Statement to be declared effective under as soon as possible after filing, but in no event shall the Securities Act no Resale Registration Statement be declared effective 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 sixty (60) days following the Effective Date, 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 time 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 of the Registrable Securities covered by the Resale Registration Statement have been publicly sold 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 (or any successor or similar provision adopted by the PurchaserCommission then in effect) at any time beginning on the effective date for such Registration Statement, or (iii) and shall provide that such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (any method or combination of methods legally available to, and requested by, the “Effectiveness Period”)Holder.
(bii) If for The Company shall notify the Holder in writing of the effectiveness of the Resale Registration Statement as soon as practicable, and in any reason event within one (1) Business Day after the Commission does not permit Resale Registration Statement becomes effective, and shall furnish to Holder, without charge, such number of copies of the Resale 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 the Resale Shelf Registration Statement or such other documents as the Holder may reasonably request in order to facilitate the sale of the Registrable Securities to be included in the manner described in the Resale Registration Statement.
(iii) Subject to the provisions of Section 4(a)(i) above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to (or replacements of) the Resale Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement (or replacements thereof) effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period. If any Resale Registration Statement filed pursuant to Section 2(a)4(a)(i) is filed on Form F-3 and thereafter the Company becomes ineligible to use such registration statement for secondary sales, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall prepare promptly notify the Holder of such ineligibility and shall file a shelf registration on Form F-1 or other appropriate form as soon promptly as possible practicable (but no later than 14 calendar days after becoming ineligible to use Form F-3) to replace the date on which Resale Registration Statement and use its best efforts to have the Commission such replacement Resale Registration Statement declared effective as promptly as practicable and shall indicate as being cause such replacement Resale Registration Statement to remain effective, and to be supplemented and amended to the first date or time extent necessary to ensure that such filing may be made, but in any event by its Filing Date, an additional Resale Shelf Registration Statement covering is available or, if not available, that another Resale Registration Statement is available, for 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 held by the Holder until all such Registrable Securities have been sold; provided, however, that at any time the Company once again becomes eligible to use Form S-3F-3, in which case such registration shall be on another appropriate form for such purpose). The the Company shall use its reasonable best efforts to cause each such replacement Resale Registration Statement to be declared effective under amended, or shall file a new replacement Resale Registration Statement, such that 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 such Resale Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodis once again on Form F-3.
(civ) If: (i) The Company represents and warrants that there are sufficient ADRs registered on a Registration Statement is not filed registration statement on or prior to its Filing Date (if Form F-6 and available for issuance in respect of all Warrant ADSs issuable hereunder, and the Company files covenants that it will cause a Registration Statement without affording the Purchaser the opportunity sufficient number of ADRs to review and comment remain registered 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 registration statement on or prior to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective Form F-6 and available for issuance to satisfy the Purchaser as to Company’s obligations hereunder at all Registrable Securities to which it times that this Warrant 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiesoutstanding.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Datefifth Trading Day following the date Stockholder Approval is obtained, the Company shall prepare and file with the 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. 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, 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 other than the Effectiveness Date, 2007 Make Good Shares 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 (i2008 Make Good Shares) 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-1 (or on such other form appropriate for such purpose).
(b) 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 (except 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.
(c) 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 2007 Make Good Shares on Form S-1 or Form S-3 if the Company is not then eligible to register for resale the Registrable Securities utilize such Form (or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). ) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement.
(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 on Form S-1 or 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.
(e) Each Registration Statement filed pursuant to subpart (a) through (d) 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 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 under the Securities Act during its entire Effectiveness Period.
(c) If: until the date which is the earliest of (i) a Registration Statement is not filed on or prior to two years after 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 Section 3(a) hereofEffective Date, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a such time as all of the Registrable Securities covered by such Registration Statement is not declared effective have been publicly sold by the Commission on or prior to its required Effectiveness DateHolders, or (iii) after its Effective Date, without regard for such time as all of the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), Registrable Securities covered by such Registration Statement ceases for any reason 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 Business Day immediately following the Effective Date of each such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be effective and available used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).
(f) Each Holder agrees to furnish to the Purchaser 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 all include the Registrable Securities of a Holder in a Registration Statement who fails to which it is required furnish to cover the Company a fully completed Selling Holder Questionnaire at any time least two Trading Days prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events Filing Date (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 subject 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 requirements set forth in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the NoteSection 3(a), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Millennium Quest Inc)
Registration. (a) On The Company shall, on or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause each Registration Statement to become effective and remain effective as provided herein. The Company shall use its commercially reasonable best efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its commercially reasonable best efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities Registration Statement may be sold immediately without registration under the Securities Act and without volume restrictions pursuant to Rule 144(k) 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 affected Holders (the each, an “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be included in the a 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 but, in the event that the Commission does not so specify, no later than 180 days after the immediately prior Registration Statement has been declared effective by the Commission (it being understood that this Section 2(b) is applicable to any event by its Filing Datesuch subsequent 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). 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 use its reasonable best commercial efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 100% 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 Registrable Securities.
(d) If: (i) a the Registration Statement is not filed on or prior to its the 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (ii) a the Registration Statement is not declared effective by the Commission on or prior to its required by the Effectiveness Date, or ; (iii) after its Effective Datethe Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all any Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod (without being succeeded immediately by an additional registration statement filed and declared effective) for a period of time which shall exceed 30 trading days in the aggregate per year or more than 20 consecutive trading days (defined as a period of 365 days commencing on the date the 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 an aggregate a period of 20 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 Days for all such events Market); (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and or (ii) the 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 20 Trading Day three (3) 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% for each 30-day period (prorated for partial periods) on a daily basis of the aggregate original principal amount of the Notes; provided that the maximum aggregate amount of liquidated damages that may be charged to the Company pursuant to this Section 2(d) shall not exceed 10% of the terms hereof initial principal amount of the Notes. While such Event continues, such liquidated damages shall apply be paid not less often than each 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 following the date on which such Event has been cured by the Company.
(e) Notwithstanding anything to the contrary contained in this Agreement, in the event the Commission determines any Registration Statement filed pursuant to this Agreement (i) constitutes a primary offering of securities by the Company or (ii) requires any Holder to be named as an underwriter and such Holder does not consent to being so named as an underwriter in such Registration Statement, the Company may reduce, 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 Eventsbasis, 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the total number of Registrable Securities to be registered on behalf of each such Holder, and the failure to include such Registrable Securities in any Registration Statement shall not cause the Company to be cutback under required to pay a penalty, financial or otherwise, as described in this Agreement, including, without limitation, any liquidated damages as set forth in Section 2(d) hereof. In the even of any such reduction in Registrable Securities, the Company shall file a Registration Statement at such time as the Commission shall indicate as being the first date or time that such filing may be made, but no later than 180 days after the immediately prior Registration Statement has been declared effective by the Commission, until such time as (i) all Registrable Securities have been registered pursuant to an effective Registration Statement, (ii) the Registrable Securities may be resold without restriction (including volume limitations) pursuant to Rule 144 of the Securities Act or (iii) the Holder agrees to be named as an underwriter in any such Registration Statements Statement.
(f) Within three (3) Business Days of the Effectiveness Date, the Company shall cause its counsel to issue an opinion substantially 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 reissued free of restrictive legend upon notice of a result sale by the Investor and confirmation by the Investor 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 such piggy-back rightsthe opinion required by this Section 2(f) shall be delivered to the Investor within the time frame set forth above.
Appears in 1 contract
Sources: Registration Rights Agreement (ProLink Holdings Corp.)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, 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 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 the earlier of (i) five two years after the Effective Date, (ii) at such time as all of the Registrable Securities have been publicly sold by the PurchaserHolders, 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 Registrable Securities 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 Datethe 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 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 the 90th 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 use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long 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 such event is within the Effectiveness Period, liquidated damages will accrue based 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 of the affected Registrable Securities paid by the Purchaser pursuant to under the Purchase Agreement from and including (y) the closing sales price of the Common Stock on 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 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 issuance of Additional Notes (as defined in the Note), to 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 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 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 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the Filing Date, the The Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not already covered by then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415, which Registration Statement shall only register the resale of secondary securities and, for the avoidance of doubt, shall not register the primary sale of securities by the Company. The Registration Statement filed hereunder 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, in which case such registration shall be on another appropriate form for in accordance herewith) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such purpose). Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its commercially reasonable best efforts to cause the a Registration Statement filed under this Agreement to be declared effective under the Securities Act promptly but, in any event, no later than the Effectiveness DateDate for such Registration Statement, and shall shall, subject Section 7(d) hereof, use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date on which is the earlier of (i) five years after the Effective Date, (ii) all securities under such time as all of the Registration Statement have ceased to be 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”). Notwithstanding the foregoing, upon reasonable notice to the Holders, 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 45 Trading Days in any given 360-day 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) If for any reason Notwithstanding anything contained herein to the contrary, in the event that the Commission does not permit all 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 first in proportion to the respective numbers of Registrable Securities represented by Underlying Shares requested to be included in registered by each such Holder over the Registration Statement filed pursuant to Section 2(a), or for any other reason any total amount of Registrable Securities are not included represented by Underlying Shares, and second in a Registration Statement filed under this Agreementproportion 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, then the “Reduction Securities”). In such event the Company shall prepare give the Holders prompt notice of the number of such Reduction Securities excluded and file as soon as possible after the date on which 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 commercially reasonable efforts at the first opportunity that is permitted by the Commission shall indicate as being to register for resale the first date or time that such filing may be made, but in any event by its Filing Date, an additional Reduction Securities. Such new Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to shall 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 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 commercially 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 the Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period, subject to Section 7(d) hereof. Notwithstanding the foregoing, the Company shall be entitled to suspend the effectiveness of such Registration Statement concurrently with any suspension pursuant to Section 2(a).
(c) If: 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 Purchaser 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 Initial Registration Statement is not declared effective by the Commission (or otherwise does not become effective) on or prior to its required the Effectiveness Date, or (iiiii) after its Effective Datethe date it is declared effective by the Commission and, without regard for the reason thereunder or efforts therefor other than a Suspension Event except as provided in compliance with Sections 2(e) and (f) and Section 6(c3(h), such Registration Statement ceases for any reason (including without limitation by reason of a stop order, or the Company’s failure to be update the Registration Statement), to remain continuously effective and available to the Purchaser as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, included in such Registration Statement for more than an aggregate of 20 forty-five (45) Trading Days for all such events in any given 360-day period (other than as a result of a breach of this Agreement by a Holder), or (iii) the Company fails to satisfy the current public information requirement pursuant to Rule 144(c)(1) as a result of which the Holders who are not affiliates are unable to sell Registrable Securities without restriction under Rule 144 (or any successor thereto), (any such failure or breach in clauses (i) through (iii) above being referred to as an “Event,” and and, for purposes of clauses (i) and or (ii) iii), the date on which such Event occurs, or for purposes of clause (iii) ii), the date on which such 20 forty-five (45) Trading Day period is exceeded, being referred to as an “Event Date”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law, for so long as on each 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 issuance of Additional Notes (as defined in the Note), to 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 earlier of (1) the applicable Event is curedcured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions or the current public information requirement, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to one percent (1%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any unregistered Registrable Securities then held by such Holder. The liquidated damages parties agree that (1) notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period (except in respect of an Event described in Section 2(c)(iii) herein), (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the Effectiveness Deadline) and in no event shall, the aggregate amount of Liquidated Damages (excluding Liquidated Damages payable in respect of an Event described in Section 2(c)(iii) herein) payable to a Holder exceed, in the aggregate, three percent (3%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement) and (2) in no event shall the Company be liable in any forty-five (45) day period for Liquidated Damages under this Agreement in excess of one percent (1%) of the aggregate purchase price paid by the Holders pursuant to the Purchase Agreement. The Liquidated Damages pursuant to the terms hereof shall apply on a pro 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 other than with respect to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall ceaseDate. The liquidated damages under this Section 2(c) Company shall not be the sole and exclusive remedy of the Purchaser liable for Liquidated Damages under this Agreement for an Eventas to any Registrable Securities which are not permitted by the Commission to be included in a Registration Statement. Notwithstanding In such case, the foregoing, no liquidated damages will accrue hereunder Liquidated Damages shall be calculated to only apply to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than percentage of Registrable Securities which are permitted to be included in such Registration Statement. The Effectiveness Deadline for a Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of a Purchaser to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Securities Act (in which the Effectiveness Deadline would be extended with respect to Registrable Securities shall not be cutback under any held by such Registration Statements as a result of such piggy-back rightsPurchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Caladrius Biosciences, Inc.)
Registration. (a) On The Company shall prepare and file with the Commission, within 60 days of the date of this Agreement, a registration statement (the "Registration Statement") for the purpose of effecting a Registration of the sale of all of the Registrable Shares. The Company shall cause such Registration Statement to be declared effective by the Commission as soon as practicable but in no event later than 60 days after filing. The Company agrees to use its reasonable efforts to keep such Registration continuously effective until the earlier of (i) the date on which all Registrable Shares have been sold pursuant to such registration statement or prior Rule 144 and (ii) the date on which, in the reasonable opinion of counsel to the Filing DateHolders, all of the Registrable Shares may be sold in accordance with Rule 144(k). The Company shall prepare and file with the Commission from time to time such amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement effective for the period of time specified in this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the Company may defer its obligation to cause a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and to become effective or to amend or supplement a Registration Statement for a period of not more than 60 days in the event of (i) an underwritten primary offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except 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, as to which the Company has a bona fide business purpose for preserving confidentiality or which renders the Company unable to comply with the requirements of the Commission 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, however, that the Company shall not then eligible defer or suspend its obligation under this Agreement to register cause a Registration Statement to become effective or to amend or supplement a Registration Statement pursuant to this Section 8(a) for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)------------ an aggregate period of more than 90 days during any 12 month period. The Company shall notify each Holder of the existence and, in the case of an event referred to in clause (i) of this Section 8(a), the nature of any such event. ------------
(b) The Company shall promptly notify the Holders of Registrable Shares covered by the Registration Statement of the occurrence of the following events:
(i) when the Registration Statement or post-effective amendment thereto filed with the Commission has become effective:
(ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration 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 of any notification of the suspension of the qualification of any Registrable Shares covered by the Registration Statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance that results in the Registration Statement or prospectus relating to Registrable Shares or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading during the 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 Registration 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 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 offering and 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 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 Registration Statement Registrable Shares covered by a registration statement to be declared registered with or approved by such state securities authorities as may be necessary 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 the Company shall not 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 under amendment to the Securities Act no later than registration statement or supplement to the Effectiveness Dateprospectus or any document incorporated therein by reference or file any other required document so that, and shall 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 any material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company agrees to use its reasonable best efforts (including the payment of any listing fees) to obtain the listing of all Registrable Shares covered by the registration statement on each securities exchange on which securities of the same class are then listed.
(g) The Company agrees to use its reasonable best efforts to keep the Registration Statement continuously effective under comply with the Securities Act until and the date 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 is the earlier of (i) five years after the Effective Date, (ii) such time as all a registration statement effecting a Registration of the Registrable Securities Shares shall have been publicly sold by effective, to make available to its security holders an earnings statement satisfying the Purchaser, or (iiiprovisions of Section 11(a) such time as all of the Securities Act.
(h) The Company agrees to cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities may Shares to be sold pursuant to Rule 144(k) (the “Effectiveness Period”).
(b) If a Registration and not bearing any Securities Act legend; and enable certificates for any reason the Commission does not permit all of the such Registrable Securities 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 issued for such purpose). The Company shall use its reasonable best efforts to cause each numbers of shares and registered in such Registration Statement to be declared effective under names as 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or Holders may reasonably request at least two business days 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 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number sale of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsShares.
Appears in 1 contract
Sources: Investment Agreement (United Dominion Realty Trust Inc)
Registration. (a) 2.1. On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its Effectiveness Date, and shall use its commercially 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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) 2.2. 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)2.1, or for any other reason any outstanding Registrable Securities are not included in a then covered by an effective Registration Statement filed under this AgreementStatement, then then, subject to the Commission's requests, interpretation and comments based on Rule 415, the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
2.3. 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 (cor a post-effective amendment on Form S-3 to the then effective Registration Statement) If: 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 commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(i) a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same as required by Section 3(a) 3.1 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities paid aggregate Loan Conversion Amount converted by such Holder into the Purchaser Preferred Shares pursuant to the Purchase Agreement from Conversion Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 1.5% of the aggregate Loan Conversion Amount converted by such Holder into the Preferred Shares pursuant to the Conversion Agreement, up to a maximum of 9% per Holder per annum of the aggregate purchase price paid by such Holder (in the form of loan conversion) pursuant to the Conversion 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 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 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 other than with respect Date.
2.4. Each Holder agrees to furnish to the initial Event Date thereof. Following Company a completed Questionnaire in the cure of all Events, the accrual of liquidated damages shall ceaseform attached to this Agreement as Annex B (a "Selling Holder Questionnaire"). 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Company shall not be cutback 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 2.4 to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section 3.1).
Appears in 1 contract
Sources: Registration Rights Agreement (China Biopharmaceuticals Holdings Inc)
Registration. (a) On or prior With respect to the Registrable Securities issued pursuant to Section 3.2(b) of the Purchase Agreement, within thirty (30) days of the date hereof (the "Filing Date"), the Company shall use its commercially reasonable efforts to prepare and file with the Commission a Registration Statement "resale" registration statement covering the resale of all such 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 415415 under the Act. The Registration Statement Such registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the such Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall also use its commercially reasonable best efforts to cause the Registration Statement to be have such registration statement declared effective under within 60 days from the Securities Act no later than Filing Date. In 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 event any shares of (i) five years after the Effective Date, (ii) such time as all Company Common tock are issued in respect of the Registrable Securities have been publicly sold Shares by way of stock split, dividend or other distribution, recapitalization or otherwise, the Purchaser, or (iii) Company shall promptly amend the registration to include such time as all of newly issued shares to the Registrable Securities may be sold pursuant extent such amendment is necessary to Rule 144(k) (the “Effectiveness Period”)include such issued shares in such registration statement.
(b) If for any reason the Commission does not permit all of With respect to the Registrable Securities to be included in the Registration Statement filed issued pursuant to Section 2(a3.3(d) or Section 3.3(e) of the Purchase Agreement, if any, within thirty (30) days of the date of issuance of such Registrable Securities (the "Second Filing Date"), or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreement, then the Company shall use its commercially reasonable efforts to prepare and file as soon as possible after the date on which with the Commission shall indicate as being the first date or time that a "resale" registration statement covering all 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, 415 under the Act. Such registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the such Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall also use its commercially reasonable best efforts to cause each such Registration Statement to be have the registration statement declared effective under within 60 days from the Securities Act as soon as possible butSecond Filing Date. In the event any shares of Company Common tock are issued in respect of the Additional Shares by way of stock split, dividend or other distribution, recapitalization or otherwise, the Company shall promptly amend the registration to include such newly issued shares to the extent such amendment is necessary to include such issued shares in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Periodregistration statement.
(c) IfShareholder acknowledges and understands that: (i) 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 Section 3(a) hereof, the Company shall not be deemed register only the Registrable Securities in fulfillment of its obligations to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by register 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available Registrable Securities pursuant to the Purchaser as 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) Purchase Agreement; and (ii) or for purposes of clause (iii) the date on which such 20 Trading Day period is exceeded, being referred Company shall be under no additional obligation 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 register any other securities of the affected Registrable Securities paid Company held 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 curedany Holder, liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence including, without limitation, options or other rights 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 issuance of Additional Notes (as defined in the Note), Shareholder to 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 acquire securities 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 Underlying Shares that are no longer Registrable SecuritiesCompany.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Gateway Realty New Jersey LLC)
Registration. (a) On The Company shall cause to be prepared and filed with the Commission, (i) within sixty (60) days following the date upon which the Company is required to deliver any Earnout Shares to the Holders in accordance with the terms of the Asset Purchase Agreement, a registration statement or, in the Company’s discretion, a supplement or amendment to a previously filed registration statement, for the purpose of effecting a Registration of the sale of such Earnout Shares by the Holders thereof, (ii) within sixty (60) days following the date upon which the Company is required to deliver any of the First Year Par B Shares to the Holders in accordance with the terms of the Asset Purchase Agreement, a registration statement or, in the Company’s discretion, a supplement or amendment to a previously filed registration statement, for the purpose of effecting a Registration of the sale of such First Year Par B Shares by the Holders thereof and (iii) prior to the Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be on Form S-3 (except if date upon which the Company is not then eligible required to register for resale deliver any of the Registrable Securities on Form S-3Second Year Par B Shares to the Holders in accordance with the terms of the Asset Purchase Agreement, a registration statement or, in which case the Company’s discretion, a supplement or amendment to a previously filed registration statement, for the purpose of effecting a Registration of the sale of such registration shall be on another appropriate form for such purpose)Second Year Par B Shares by the Holders thereof. The Company shall use its reasonable best efforts to cause the Registration Statement such Registrations to be declared become effective under the Securities Act no later than the Effectiveness Date, as soon as practicable and shall use its reasonable best efforts to keep the Registration Statement such Registrations continuously effective under the Securities Act until the date on which all applicable Registrable Shares have been sold pursuant to such registration statements.
(b) Notwithstanding the foregoing, during any period when a registration statement is effective with respect to the Registrable Shares, the Company shall have the right to cause the Holders to suspend sales under such registration statement one (1) time for up to 60 days in any 365 day period by notifying the Holders in writing that the board of directors of the Company has determined that the continuation of such sales would be “Detrimental,” as defined below, to the Company and its stockholders. Each such written notice shall specify the basis for the suspension and shall include a copy of the resolution setting forth the relevant determination of the Company’s board of directors. “Detrimental” to the Company and its stockholders means that the board of directors of the Company determines in good faith that continued sales by the Holders under the registration statement would (A) (1) interfere with or have a material adverse effect on the negotiation or completion of, or (2) require, prior to the signing of a definitive agreement, the Company publicly to disclose, in each case, any extraordinary transaction that is being contemplated by the Company, or (B) would have a material adverse effect on the Company. Upon the Holders’ receipt of any such written notice from the Company, the Holders shall immediately suspend all sales of Registrable Shares under such registration statement and shall not recommence such sales until the earlier of (i) five years after the Effective Datedate upon which Company notifies the Holders in writing that the Holders are permitted to do so, or (ii) sixty (60) days following the date upon which the Holders received the written notice of suspension.
(c) The Company shall promptly notify the Holders of the occurrence of the following events:
(i) when any registration statement relating to Registrable Shares or post-effective amendment thereto filed with the Commission has become effective;
(ii) the issuance by the Commission of any stop order suspending the effectiveness of any registration statement relating to the Registrable Shares;
(iii) The Company’s receipt of any notification of the suspension of the qualification of any Registrable Shares covered by a registration statement for sale in any jurisdiction; and
(iv) the existence of any event, fact or circumstance during the distribution of securities that results in a registration statement or prospectus relating to Registrable Shares or any document incorporated therein by reference containing an untrue statement of material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) The Holders shall immediately cease selling Registrable Shares upon their receipt of a notice described in clauses (ii) or (iv) above and shall immediately cease selling Registrable Shares in the relevant jurisdiction upon receipt of a notice described in clause (iii) above. The Holders shall not resume such time sales of Registrable Shares until receiving notice from the Company that such sales may resume. The Company agrees to use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any such registration statement or any state qualification as all soon as practicable.
(e) The Company shall provide to the Holders, at no cost to the Holders, a copy of the registration statement and any amendment thereto used to effect the Registration of the Registrable Securities have been publicly sold by Shares, each prospectus contained in such registration statement or post-effective amendment, and any amendment or supplement thereto and such other documents as the Purchaser, or (iii) such time as all requesting Holders may reasonably request in order to facilitate the disposition of the Registrable Securities may be sold pursuant Shares covered by such registration statement. The Company consents to Rule 144(k) (the “Effectiveness Period”)use of each such prospectus and any supplement thereto by the Holders in connection with the offering and sale of the Registrable Shares covered by such registration statement or any amendment thereto.
(bf) The Company agrees to use its reasonable efforts to cause the Registrable Shares covered by a registration statement to be registered with or approved by such state securities authorities as may be necessary to enable the Holders to consummate the disposition of such shares pursuant to the plan of distribution set forth in the registration statement.
(g) If for any reason event, fact or circumstance requiring an amendment to a registration statement relating to the Commission does not permit all Registrable Shares or supplement to a prospectus relating to the Registrable Shares shall exist, promptly 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 Securities Shares, the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be included in stated therein or necessary to make the Registration Statement filed pursuant to Section 2(a), or for any other reason any Registrable Securities are statements therein 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 misleading.
(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). h) The Company shall agrees to use its reasonable best efforts (including the payment of any listing fees) to cause obtain the listing of all Registrable Shares covered by the registration statement on each such Registration Statement to be declared effective under national securities exchange on which securities of the same series are then listed.
(i) The Company will 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 possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 reasonably practicable 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 any fiscal year during which a registration statement effecting a Registration of the Registrable Shares shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such dateeffective, make available to its security holders an earnings statement satisfying the provisions of Section 11(a) 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 Underlying Shares that are no longer Registrable SecuritiesSecurities Act.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement Statement, for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 eight years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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”"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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) If: 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 (ior 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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) If a Registration Statement is not filed on or prior to its Filing Date (if the Company files a Registration Statement without affording the Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 i)(such failure or breach being referred to as an “Event,” "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 exceededEvent 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 (“Event DateADDITIONAL WARRANTS”), then, . The number of Additional Warrants that shall be issued to a Holder is equivalent to one Additional Warrant for so long as every Warrant and Warrant Share owned by such event is within Holder. The Additional Warrants will have a per share exercise price equal to the Effectiveness Period, liquidated damages will accrue based on lower of (a) the Purchase Price average of the affected 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 paid by the Purchaser pursuant of a Holder in a Registration Statement and shall not be required to issue any Additional Warrants or other damages under Section 2(d) to any Holder who fails to furnish 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 Company a fully completed Selling Holder Questionnaire 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 issuance of Additional Notes (as defined in the Note), to 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 least two Trading Days prior to the cure of an Event other than with respect Filing Date (subject to the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this requirements set forth in 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 Underlying Shares that are no longer Registrable Securities3(a)).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (Daybreak Oil & Gas Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3SB-2, in which case such registration shall be on another appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 four years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3SB-2, 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire 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 Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 2.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement; provided, that the liquidated damages payable under this section shall be capped for any Investor at 10% of such Investor's Investment Amount (which cap shall not affect such Investor's right to seek other available remedies). 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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 (Electronic Control Security Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the Commission a Registration Statement or Registration Statements (as necessary) on Form S-3 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. The In the event that Form S-3 is unavailable for such a registration, the Company shall use such other form as is available for such a registration. Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 (5) years after the its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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”"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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 an 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and and/or available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, the Company agrees to use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act for an aggregate additional period of 20 Trading Days for all such events (any such failure or breach being referred to as an “Event,” and for purposes time, beginning on the last day 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 equal to the Purchase Agreement from aggregate amount of days that passed before the Company cured any 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 all events referred to in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes clauses (as defined in the Notei), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such dateii) 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(cand (iii) 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 Underlying Shares that are no longer Registrable Securitiesherein.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be required to include the Registrable Securities of a Holder in accordance with 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)).
(e) In the event that Form S-3 is not available for any registration of piggy-back rights granted under predecessor agreementsRegistrable Securities hereunder, the Company shall (i) register the sale of the Registrable 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, however, that the number 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 shall not be cutback under any such Registration Statements as a result of such piggy-back rightshas been declared effective by the Commission.
Appears in 1 contract
Sources: Registration Rights Agreement (Jmar Technologies Inc)
Registration. (a) On or prior Subject to the Filing Dateprovisions of Section 2(b) below, the Company shall prepare and will file with the Commission a registration statement on Form S-3 (the "Issuance Registration Statement covering Statement") under Rule 415 under the resale Securities Act relating to the issuance to the Investors of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering Common Shares upon redemption of Common Units, such filing to be made on a continuous basis or within five business days after the first anniversary of the date hereof (the "Filing Date"); 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 by the Commission pursuant to Rule 415. The Registration Statement shall be on Form S-3 (except if its interpretations of the Company is not then eligible to register for resale Securities Act, the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose)Exchange Act and other applicable federal securities laws. The Company shall use its reasonable best efforts to cause the Issuance Registration Statement to be declared effective under by the Securities Act no later than Commission for all Registrable Shares covered thereby as soon as practicable thereafter. In the Effectiveness Date, and shall use its reasonable best efforts event the Company is unable to keep the cause such Issuance Registration Statement continuously to be declared 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 Commission within ninety (iii90) such time as all of days following 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 AgreementFiling Date, then the rights of the Holders set forth in Section 2(b) below shall apply to the Registrable Shares. Notwithstanding the availability of rights under Section 2(b), 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 continue 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 the Issuance Registration Statement to be declared effective under by the Securities Act Commission until such time as soon as possible butthe Company shall have filed and had declared effective a Shelf Registration Statement in accordance with Section 2(b). If the Issuance Registration Statement is declared effective by the Commission, in any event, no later than its Effectiveness Date, and shall the Company agrees to use its reasonable best efforts to keep such Issuance Registration Statement continuously effective until all Holders have tendered for redemption their Common Units.
(b) In the event that Form S-3 is unavailable at the Filing Date as a form for an Issuance Registration Statement, or Form S-3 becomes unavailable as a form for an Issuance Registration Statement following the Filing Date, or the Company is unable, for any reason, to cause an Issuance Registration Statement to be declared effective by the Commission within ninety (90) days following the Filing Date, then within ten (10) days after the occurrence of any such event, the Company shall file a registration statement on Form S-3 or another appropriate form (a "Shelf Registration Statement") under Rule 415 under the Securities Act during relating to the resale of all Registrable Shares. The Company agrees to use its entire Effectiveness Periodreasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission and to keep such Shelf Registration Statement effective until the date that is the earliest of (i) two (2) years following the date on which the last Holder tendered for redemption any Common Units, (b) the date on which all Registrable Shares have been disposed of by Holders, and (c) the date on which it is no longer necessary to keep the Shelf Registration Statement effective because the Registrable Shares may be freely sold without limitation on volume or manner of sale pursuant to Rule 144. After the Company has filed the Shelf Registration Statement and it is declared effective, any obligation of the Company to file an Issuance Registration Statement pursuant to Section 2(a) above shall be suspended for so long as the Shelf Registration Statement remains effective.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date (if Notwithstanding the Company files a Registration Statement without affording the Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofforegoing, the Company shall not be deemed have the right (the "Suspension Right") to have satisfied this clause defer any such filing (i)), or (ii) a suspend sales under any filed Registration Statement is or defer the updating of any filed Registration Statement and suspend sales thereunder) for a period of not declared effective more than 105 days during any one-year period ending on December 31, if the Company shall furnish to the Holders a certificate signed by an executive officer or any director of the Commission on or prior Company stating that, in the good faith judgment of the Company, it would be detrimental to the Company and its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), stockholders to file such Registration Statement ceases for any reason to be effective and available to the Purchaser as to all Registrable Securities to which it is required to cover or amendment thereto at any such 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 (icontinue sales under a filed Registration Statement) and (ii) or for purposes therefore the Company has elected to defer the filing 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 issuance of Additional Notes (as defined in the Note), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as Statement (or suspend sales under a result of such piggy-back rightsfiled Registration Statement).
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the Commission a "shelf" 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; provided, however, that the Company shall not be required to register any Registrable Securities pursuant to this Section 2(a) that are eligible for sale pursuant to Rule 144 of the Securities Act. The Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register or on another form appropriate for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall (i) not permit any securities other than the Registrable Securities to be included in the Registration Statement and (ii) use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no later than (including filing with the Effectiveness Date, and shall use its reasonable best efforts to keep the Registration Statement continuously effective Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act until within five (5) Business Days of the date which that the Company is the earlier of notified (iorally or in writing, whichever is earlier) 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 that a Registration Statement filed under this Agreement, then will not be "reviewed," or not be subject to further review) within sixty (60) days from 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 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 such Registration Statement continuously effective under the Securities Act during its entire until such date as is the earlier of (x) the 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 pursuant to Rule 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 "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 Option Shares exceeds the number of shares of Common Stock initially registered in respect of the Common Shares and the Option Shares based upon the computation on the Closing Date, the Company shall have 20 Business Days to file such additional Registration Statement, and the Company shall use its best efforts to cause such additional Registration Statement to be declared effective by the Commission as soon as possible, but in no event later than 30 days after filing.
(b) If (i) there is material non-public information regarding the Company which the Company's Board of Directors (the "Board") reasonably determines not to be in the Company's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company's best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 90 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 2(b) for more than 120 days in the aggregate during any 12 month period (each, a "Blackout Period").
(c) If: In connection with the Company's registration obligations under this Section 2, the Company shall
(i) 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 Prepare 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 file with the Commission on or prior to its required Effectiveness the Filing Date, a Registration Statement on Form S-3 (or on another form appropriate for such registration in accordance herewith) in accordance with the method or methods of distribution thereof as specified by the Holders (except if otherwise directed by the Holders), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than five (5) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated therein by reference), the Company shall (x) furnish to the Holders and any Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Holders and such Special Counsel, and (y) the Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or any Special Counsel shall reasonably object in writing within three (3) Business Days of their receipt thereof;
(ii) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities;
(iii) after its Effective Date, without regard for cause the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason related Prospectus to be effective amended or supplemented by any required Prospectus supplement, and available as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Purchaser as to Securities Act;
(iv) comply in all Registrable Securities to which it is required to cover at any time prior to material respects with 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 provisions of the affected Registrable Securities paid by Act and 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 issuance of Additional Notes (as defined in the Note), to 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 Exchange Act with respect to the initial Event Date thereof. Following the cure disposition 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities covered by the Registration Statement during the applicable period in accordance with the requirements intended methods of piggy-back rights granted disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented; and
(v) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and any Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under predecessor agreementsthe securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the number of Registrable Securities Company shall not be cutback under required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process in any such Registration Statements as a result of jurisdiction where it is not then so subject or subject the Company to any material tax in any such piggy-back rightsjurisdiction where it is not then so subject.
Appears in 1 contract
Sources: Registration Rights Agreement (Homegold Financial Inc)
Registration. The Company shall:
(a) On or prior to the Filing Date, the Company shall prepare and file with the Commission Commission, not later than 60 calendar days following the later of the (i) date of receipt by the Company of approval for listing of the Common Stock on the American Stock Exchange and (ii) the Closing Date (the “Filing Deadline Date”), a registration statement on Form F-1 (the “Registration Statement covering Statement”) to enable the resale of all Registrable Shares by the Investors from time to time under the 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. The Registration Statement shall be on Form S-3 Act;
(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 b) use its commercially reasonable best efforts efforts, subject to receipt of information from the Investors set forth in Exhibit C, to cause the Registration Statement to be declared effective under the Securities Act as soon as practicable but in no event later than the date (the “Effectiveness Deadline Date”) that is 90calendar days after the Filing Deadline Date; provided that if the Commission elects to review the Registration Statement, and the Effectiveness Deadline Date shall be the date that is 120 days from the date of filing of the Registration Statement.
(c) upon effectiveness of the Registration Statement the Company will use its commercially reasonable best efforts to keep cause the Shares to be listed on the American Stock Exchange or any other registered United States national securities exchange. In the event that the Shares cannot be listed on the American Stock Exchange or any other United States national securities exchange, the Company shall use its commercially reasonable best efforts to list the Shares on the TSX Venture Exchange as soon as practicable.
(d) during the period from the date on which the Registration Statement continuously is declared effective under the Securities Act until the date which is the earlier of (i) five years after such time as all Investors may immediately sell all of the Effective Date, Shares purchased under this Agreement under Rule 144(b) and (ii) such time as all of the Registrable Securities Investors 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) Shares that the Investors purchased under this Agreement (such period, the “Effectiveness Period”).
, the Company shall: (bA) If for any reason use its commercially reasonable best efforts to prepare and file with the Commission does not permit all of the Registrable Securities such amendments and supplements to be included in the Registration Statement as may be necessary or appropriate to keep such Registration Statement current and continuously effective; (B) cause the Prospectus used in connection with such Registration Statement to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Section 2(a)Rule 424 (or any similar provisions then in force) under the Securities Act; and (C) use its commercially reasonable best efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement, as so amended, or for any other reason any Registrable Securities are not included in a Registration Statement filed under this Agreementsuch Prospectus, then the Company shall prepare and file as so supplemented;
(e) 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 madepracticable, but in any event by its Filing Datewithin two business days, an additional give notice to each Investor when any Prospectus, Prospectus supplement, or the Registration Statement covering or any post-effective amendment to the resale Registration Statement has been filed with the Commission and, with respect to a Registration Statement or any post-effective amendment, when the same has been declared effective;
(f) furnish to each Investor such number of copies of the Registration Statement, Prospectuses (including Prospectus supplements) and preliminary versions of the Prospectus filed with the Commission (“Preliminary Prospectuses”) in conformity with the requirements of the Securities Act, and such other documents as such Investor may reasonably request, in order to facilitate the public sale or other disposition of all Registrable Securities not already covered or any of the Shares by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415such Investor; provided, on Form S-3 (except if however, that unless waived by the Company in writing, the obligation of the Company to deliver copies of Prospectuses or Preliminary Prospectuses to any Investor shall be subject to the receipt by the Company of reasonable assurances from such Investor that such Investor will comply with the applicable provisions of the Securities Act and of such other securities or Blue Sky laws as may be applicable in connection with any use of such Prospectuses or Preliminary Prospectuses;
(g) file documents required of the Company for normal blue sky clearance in all states requiring blue sky clearance; provided that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then eligible to register so subject;
(h) advise the Investors at the earliest possible moment after the Company shall receive notice or obtain knowledge of (i) the issuance of any stop order by the Commission delaying or suspending the effectiveness of the Registration Statement or (ii) suspension of the qualification (or exemption from qualification) of any of the Shares for resale the Registrable Securities on Form S-3sale in any jurisdiction in which they have been qualified for sale, or, in which case such registration shall be on another appropriate form each case, the initiation of any proceeding for such that purpose). The Company shall ; and promptly use its commercially reasonable best efforts to cause each prevent the issuance of any stop order or suspension or obtain its withdrawal at the earliest possible moment if such Registration Statement to stop order should 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.issued or suspension levied; and
(c) If: (i) a bear all fees and expenses (other than fees and expenses of each Investor’s legal counsel or other advisers, and underwriting discounts, brokerage fees and commissions, if any) incurred in connection with the performance by the Company of its obligations under paragraphs (a) through (g) and the registration of Shares pursuant to the Registration Statement, whether or not the 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 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitieseffective.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall use its best efforts to prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall use its reasonable best efforts to cause the each Registration Statement to become effective and remain effective as provided herein. The Company shall use its best efforts to cause each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (the “each, an "Effectiveness Period”").
(b) If for any reason the Commission does not permit all Within three business days 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereof, 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 deemed to have satisfied this clause (i)), or (ii) reissued free of restrictive legend upon notice of a Registration Statement is not declared effective sale by the Commission on 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 prior to its in writing that the opinion has been withdrawn. Copies of the blanket opinion required Effectiveness Date, or (iiiby this Section 2(b) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to shall be effective and available delivered to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 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 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 such the Registration Statement continuously effective under the Securities Act during until the date which is the earliest of (i) five years after its entire 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 immediately 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).
(cb) 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 Purchaser 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 DateDate 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) (whether or not such a prospectus is actually required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 30 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 30 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each such Event Date, 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 issuance of Additional Notes (as defined in the Note), to 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 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 (1) the Company will not be liable for liquidated damages under this Agreement with respect to any Warrants or Warrant Shares and (2) in no event will the Company be liable for liquidated damages under this Agreement in excess of 1.0% of the aggregate Investment Amount of the Holders as of any Event Date or monthly anniversary thereof, and (3) the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be ten percent (10%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. The partial liquidated damages pursuant to the terms hereof shall apply on a pro daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(dc) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "Selling Holder Questionnaire"). The Company shall not be cutback 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(b) to any such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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 (Monterey Gourmet Foods)
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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”"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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(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 keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.
(d) 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 Purchaser 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))Date, or (ii) a Registration Statement 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 other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 45 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event"EVENT,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 45 Trading Day Day-period is exceeded, being referred to as “Event Date”"EVENT DATE"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.5% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 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 than with respect to provisions of this Section 2, in no event shall the initial Event Date thereof. Following the cure of all Events, the accrual of liquidated damages shall cease. The Company be liable for partial liquidated damages under this Section 2(c2(d) shall be the sole and exclusive remedy to any Holder in excess of 10.5% of the Purchaser under this Agreement Investment Amount paid by such Holder for an Event. Notwithstanding the foregoing, no liquidated damages will accrue hereunder Securities pursuant to the Purchaser with respect to the Primary Shares or Underlying Shares that are no longer Registrable SecuritiesPurchase Agreement.
(de) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a "SELLING HOLDER QUESTIONNAIRE"). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). "Plan of Distribution" attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire 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 Registration Statement to be declared effective as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.
(cb) 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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 45 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “"Event,” " and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 45 Trading Day Day-period is exceeded, being referred to as “"Event Date”"), thenthen 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, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 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 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 pro 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 other than with respect Date.
(c) Each Holder agrees to furnish to the initial Event Date thereof. Following Company a completed Questionnaire in the cure of all Events, the accrual of liquidated damages shall ceaseform 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 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 any Holder who fails to furnish to the Purchaser with respect Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the Primary Shares or Underlying Shares that are no longer Registrable Securities.
Filing Date (d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with subject to the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rightsset forth in Section 3(a)).
Appears in 1 contract
Sources: Registration Rights Agreement (International Displayworks Inc)
Registration. (a) On or prior to The Company shall as soon as possible, but in no event later than 30 days following the Filing Closing Date, the Company shall prepare and file with the Commission a the Registration Statement covering the resale of all of the 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. The Registration Statement required hereunder 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, in which case such registration shall be or on another appropriate form for such purposein accordance herewith). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act no as promptly as possible after the filing thereof, but in any event not 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 covered by the Registration Statement (a) have been publicly sold by pursuant to the Purchaser, Registration Statement or (iiib) such time as all of the Registrable Securities may be sold without volume restrictions pursuant to Rule 144(k) as determined by 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 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 required 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 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 such Registration Statement continuously effective under the Securities Act during its 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 Purchaser 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 hereunder 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 other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 ”) within 180 days from the Closing Date (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”), thenthen in addition to any other rights the Holders may have hereunder or under applicable law: on each 30-day anniversary of the Event Date until the Registration Statement is declared effective, for so long the Company shall issue to each Holder, at such Holder’s option on the Event Date, (i) a warrant (a “Warrant”), as such event is within the Effectiveness Period, liquidated damages will accrue based and not as a penalty, to purchase shares of Common Stock equal to one and one-half percent (1.5%) (or a prorated portion thereof for any portion of the 30-day period) of the Shares issued to the Holder on the Purchase Price of the affected Registrable Securities paid by the Purchaser Closing Date 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“Warrant Shares”), liquidated damages will accrue at a rate of 0.50% per annum during the 90-day period immediately following the occurrence an initial exercise price equal to one hundred twenty percent (120%) of the Event Date closing bid price of the Common Stock on the business day before the Closing Date, subject to adjustment, evidenced by a warrant certificate in the form attached hereto as Exhibit A (the “Warrant Certificate”) or (ii) cash equal to one and shall increase by 0.50% per annum at one-half percent (1.5%) (or a prorated portion thereof for any portion of the end of each subsequent 9030-day period, but in no event shall ) of the aggregate purchase price paid by such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the Note), Holder pursuant to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured Purchase Agreement for any Shares then held by such date) until the applicable Event is curedHolder. The liquidated damages pursuant to the terms hereof shall apply on a pro pro-rata basis for any portion of a month the 30-day period prior to the cure of an the Event other than and will accrue pro rata to each Holder until the date which is two (2) years after the Closing Date; provided, however, that should the Company be in breach of its obligations under this Agreement, such liquidated damages shall apply for so long as, and to the extent, such breach is continuing and such Holder holds Registrable Securities. During any periods that the Company is unable to meet its obligations hereunder solely with respect to the initial registration of the Registrable Securities solely because any Holder fails to furnish required information in accordance with this Agreement within three trading days of the Company’s request for such information, any liquidated damages that are accruing at such time shall be tolled and the Event Date thereofthat may otherwise occur as a result of such delay shall be suspended, until such required information is delivered to the Company.
(c) The Company shall be permitted to suspend the effectiveness of any Registration Statement hereunder if (i) the Company provides at least 10 days’ prior written notice to Holders of the Company’s intention to make a public offering of its Common Stock within 30 days of such notice, other than a Registration Statement filed pursuant to this Section, and the Company is actively employing its commercially reasonable efforts to cause the registration statement covering such public offering of Common Stock to become and remain effective, (ii) a merger, acquisition, business combination or other similar transaction has been proposed and is being considered by the Company, or (iii) there is an event that the board of directors of the Company, in good faith and its reasonable discretion, upon advice of counsel, believes is material. Following Notwithstanding anything to the cure of all Eventscontrary in this Section 2, the accrual Company shall not be permitted to suspend the effectiveness of liquidated damages any Registration Statement hereunder for more than 30 consecutive days at any one time or more than 60 days in any 12-month period and the Company 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 use its reasonable best efforts to the Purchaser with respect to the Primary Shares remove or Underlying Shares that are no longer Registrable Securitieslist such suspension as promptly as practicable.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with In the requirements of piggy-back rights granted under predecessor agreements, provided, that event the number of shares available under the Registration Statement filed pursuant to Section 2(a) is insufficient to cover all of the Registrable Securities, the Company shall amend the Registration Statement, or file a new Registration Statement, or both, so as to cover all of such Registrable Securities, in each case, as soon as practicable after the necessity therefor arises. The Company shall use its commercially reasonable efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof and to remain effective under the same terms and conditions as the prior Registration Statement.
(e) If a Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall as promptly as reasonably practicable but not be cutback more than thirty (30) days 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 covering all of the Registrable Securities that as of the date of such filing were registered under any the prior Registration Statement. If a subsequent Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Registration Statements Statement to become effective as promptly as is reasonably practicable but not more than thirty (30) days after such filing and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective until the end of the Effectiveness Period.
(f) In the event that Form S-3 is not available for any registration of Registrable Securities hereunder, the Company shall (i) register the sale of the Registrable 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 use its commercially reasonable efforts to maintain the effectiveness of the Registration Statement then in effect until such time as a result of such piggy-back rightsRegistration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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 415Securities. 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, in which case such registration shall be on another appropriate form for such purpose). The Company shall use its commercially 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 commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of (i) five three (3) years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the PurchaserPurchasers, or (iii) such time as all of the Registrable Securities may be sold pursuant to Rule 144(k) (the “Effectiveness Period”). The Company will use its commercially reasonable efforts, consistent with the terms of this Agreement, to remain eligible to use Form S-3 registration or a similar short-form registration.
(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, or if the Registration Statement ceases to be effective before the expiration of the Effectiveness Period, 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 commercially 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 use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a Registration Statement is not filed on or prior Each Purchaser agrees to its Filing Date (if furnish to the Company files a Registration Statement without affording completed Questionnaire in the Purchaser the opportunity form attached to review and comment on the same this Agreement as required by Section 3(a) hereof, the Annex A (a “Selling Holder Questionnaire”). The Company shall not be deemed required to have satisfied this clause (i)), or (ii) include the Registrable Securities of a Purchaser in a Registration Statement is not declared effective by the Commission on or prior who fails to its required Effectiveness Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available furnish to the Purchaser as to all Registrable Securities to which it is required to cover Company a fully completed Selling Holder Questionnaire at any time least six Trading Days prior to the expiration of its Effectiveness Period, for an aggregate of 20 Trading Days for all such events Filing Date (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 subject 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 requirements set forth in no event shall such rate exceed 1.00% per annum. The liquidated damages shall be due and payable in cash or through the issuance of Additional Notes (as defined in the NoteSection 3(a), to 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 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 requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Sources: Registration Rights Agreement (DiMaio Ahmad Capital LLC)
Registration. (a) On or prior to the each Filing Date, the Company Parent shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an a selling stockholder resale offering to be made on a continuous basis pursuant to Rule 415. The Each Registration Statement shall be on Form S-3 (except if the Company Parent 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 purposein accordance herewith). The Company Parent shall cause each Registration Statement to become effective and remain effective as provided herein. The Parent shall use its reasonable best commercial efforts to cause the each Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Parent shall use its reasonable best commercial efforts to keep the each Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, all Registrable Securities covered by such Registration Statement have been sold or (ii) such time as all of the Registrable Securities have been publicly sold covered by the Purchaser, or (iii) such time as all of the Registrable Securities 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 Parent pursuant to a written opinion letter to such effect, addressed and acceptable to the Parent's transfer agent and the affected Holders (the “each, an "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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the applicable Filing Date (if the Company files a for such Registration Statement without affording the Purchaser 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 Statement; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the applicable Effectiveness Date, or ; (iii) after its Effective Datea Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder a Discontinuation Event (as hereafter defined) shall occur and be continuing, or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod applicable to such Registration Statement (without being succeeded immediately by an additional Registration Statement filed and declared effective), for an 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 20 365 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 for all (provided the Parent shall not have been able to cure such events 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 clauses clause (i) and or (ii) the 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 20 three (3) Trading Day period is exceeded, being referred to as “"Event Date”"), thenthen 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 Parent shall pay to the Purchaser for so long as each day that an Event has occurred and is continuing, an amount in cash equal to one-thirtieth (1/30th) of the product of: (A) the then outstanding principal amount of the Minimum Borrowing Note multiplied by (B) 0.02. In the event the Parent fails to make any payments pursuant to this Section 2(b) in a timely manner, such event is within payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full.
(b) Within three business days of the Effectiveness PeriodDate, liquidated damages will accrue based on the Purchase Price Parent shall 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 reissued free of the affected Registrable Securities paid restrictive legend upon notice of a sale by the Purchaser pursuant to and confirmation by the Purchase Agreement from and including Purchaser that it has complied with the Event Date but excluding prospectus delivery requirements, provided that the date on which Parent has not advised the Event transfer agent orally or in writing that the opinion has been curedwithdrawn. 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 Copies of the Event Date and shall increase blanket opinion required 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 issuance of Additional Notes (as defined in the Note), to 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 delivered to the Purchaser with respect to within the Primary Shares or Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the each Filing Date, the Company shall prepare and file with the 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. The Such Registration Statement shall be on Form S-3 contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale Commission upon a review of such Registration Statement) the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose). “Plan of Distribution” attached hereto as Annex A. The Company shall use its reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the its 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the PurchaserHolders, 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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, then the Company shall prepare and file as soon as possible after by the date on which the Commission shall indicate as being the first date or time that Filing Date for such filing may be made, but in any event by its Filing DateRegistration 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 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 under the Securities Act as soon as possible but, in any event, no later than by its Effectiveness Date, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire 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, but in any event prior to the Effectiveness Date therefor.
(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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefor, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 Trading Days for all such events 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) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), thenthen 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, for so long as such event is within the Effectiveness Periodpartial liquidated damages, liquidated damages will accrue based on the Purchase Price equal to 1.0% of the affected Registrable Securities aggregate Investment Amount paid by the Purchaser such Holder for Shares pursuant to the Purchase Agreement from that are owned by such Holder on such Event Date; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 1.0% of the aggregate Investment Amount paid by such Holder for Shares pursuant to the Purchase Agreement that are owned by such Holder on the applicable monthly anniversary of such Event Date. 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 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 daily pro-rata basis for any portion of a month prior to the cure of an Event other than with respect to Event, except in 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 case 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 Underlying Shares that are no longer Registrable Securitiesfirst Event Date.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully 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: Securities Purchase Agreement (Granite City Food & Brewery LTD)
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, 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 the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the Registrable Securities 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 (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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a any Registration Statement is not filed on or prior to its the 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (ii) a Registration Statement filed hereunder is not declared effective by the Commission on or prior to its required by the Effectiveness Date, or ; (iii) after its Effective Date, without regard for a Registration Statement is filed with and declared effective by the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)Commission, such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod (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 the 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 an aggregate a period of 20 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events trading suspension within 30 days of the notice thereof or list the Common Stock on any of the NASD OTC Bulletin Board, BBX Exchange, NASDAQ SmallCap Market, the Nasdaq National Market, American Stock Exchange or New York Stock Exchange (the “Trading Market”)) (any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and ), (ii) or (iv) the 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 20 three (3) 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall pay to each Holder an amount in cash, as liquidated damages pursuant and not as a penalty, equal to the terms hereof shall apply 2.0% for each thirty (30) day period (prorated for partial periods) on a pro rata daily basis for any portion of a month prior to the cure original principal amount of the Note. Such liquidation damages shall be paid not less than each thirty (30) days during an Event other than with respect to and within three (3) days following the initial date on which such Event Date thereof. Following has been cured by 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 Underlying Shares that are no longer Registrable SecuritiesCompany.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. 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, in which case such registration shall be on another appropriate form for such purpose). , including, without limitation, Form S-1) 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 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 expiration of the earlier Effectiveness Period. Notwithstanding the foregoing, the Company shall not be obligated to enter into any underwriting agreement for the sale of (i) five years after the Effective Date, (ii) such time as all any 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”)Securities.
(b) If for any reason the Commission does not permit all of the Registrable Securities Shares, Warrant Shares, and Placement Agent 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 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 Datethe 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 purposepurpose including, without limitation, Form S-1). 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 under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness DateDate for such Registration Statement, and shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period. Notwithstanding the foregoing, the Company shall not be obligated to enter into any underwriting agreement for the sale of any of the Registrable Securities.
(c) If: (i) a Registration Statement is not filed on or prior to its Filing Date Date, (if the Company files a Registration Statement without affording the Purchaser Holders the opportunity to review and comment on the same sections 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for an aggregate of more than an aggregate of 20 Trading Days for all such events (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 Trading Day Day-period is exceeded, being referred to as “Event Date”), then, for so long in addition to any other rights available to the Holders under the Transaction Documents or under applicable law: (x) on each Event Date the Company shall pay to each Holder an amount in cash, as such event is within the Effectiveness Period, liquidated damages will accrue based on and not as a penalty, equal to 1% of the Investment Amount paid by such Investor under the Purchase Price of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from Agreement; 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 issuance of Additional Notes (as defined in the Note), to 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 Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the Investment Amount paid by such Investor under the Purchase Agreement. The 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 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. Other than with respect to the first Event Date, 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements under Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities Agreement as Annex B (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 any Section 2(c) hereof to such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least five 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 (Point Therapeutics Inc)
Registration. (a) On or prior to the Filing Date, Date the Company shall prepare and file with the 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. 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, in which case such registration shall be on another appropriate form for such purposein accordance herewith). The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable best commercial efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the Effectiveness Date, and . The Company shall use its reasonable best commercial efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when (i) five years after the Effective Date, (ii) such time as all of the Registrable Securities have been publicly sold by the Purchaser, or (iiiii) such time as all of the Registrable Securities 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 or (iii) the third (3rd) anniversary of the expiration of the term of the Warrant, as it may be extended, provided Rule 144(k) or similar successor rule is then applicable to the Registrable Securities (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 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 such Registration Statement continuously effective under the Securities Act during its entire Effectiveness Period.
(c) If: (i) a the Registration Statement is not filed on or prior to its the 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or Date; (ii) a the Registration Statement is not declared effective by the Commission by the Effectiveness Date (which date shall be extended for each normal trading day the American Stock Exchange (or any principal exchange on or prior to its required Effectiveness Date, or which the Common Stock is then trading) is closed); (iii) after its Effective Datethe Registration Statement is filed with and declared effective by the Commission, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser (by suspension or otherwise) as to all Registrable Securities to which it is required to cover relate at any time prior to the expiration of its the Effectiveness PeriodPeriod (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 the 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 an aggregate a period of 20 three (3) consecutive Trading Days for all (provided the Company shall not have been able to cure such events 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 clauses clause (i) and or (ii) the 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 20 three (3) 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event shall not have been cured by such date) then until the applicable Event is cured. The , the Company shall issue to the Holders additional Warrants, as liquidated damages and not as a penalty, equal to 4% of the number of Warrants initially issued pursuant to the terms hereof shall apply on a pro rata basis Securities Purchase Agreement for any portion of a month prior to the cure of an each thirty (30) day period (prorated for partial periods). While such Event other than with respect to the initial Event Date thereof. Following the cure of all Eventscontinues, the accrual of such Warrants as liquidated damages shall ceasebe issued not less often than each thirty (30) days. The Any unpaid liquidated damages under as of the date when an Event has been cured by the Company shall be paid within three (3) days following the date on which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the Company shall 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 reissued free of restrictive legend upon notice of a sale by ▇▇▇▇▇▇▇▇ and confirmation by ▇▇▇▇▇▇▇▇ 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 blanket opinion required by this Section 2(c) shall be delivered to ▇▇▇▇▇▇▇▇ within 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 Underlying Shares that are no longer Registrable Securitiestime frame set forth above.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
Appears in 1 contract
Registration. (a) On or prior to the Filing Date, the Company shall prepare and file with the 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. The Registration Statement shall be on Form S-3 SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-3 in the future, in which case the Company shall file a post effective amendment to the registration statement on Form S-3 covering the Registrable Securities and shall use its commercially reasonable efforts to cause such registration shall Registration Statement to be on another appropriate form for such purposedeclared 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 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 no later than within five (5) Business Days after the Effectiveness Datedate 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 use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier of of: (i) five years after the Effective Date, (ii) such time as date that all of the Registrable Securities covered by the Registration Statement have been publicly sold by the Purchaser, or (iii) such time as all of the Registrable Securities 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 (ii) the date which is the second anniversary of the date in which the Registration Statement was declared effective by the Commission (the “Effectiveness Period”).
. Such Registration Statement shall also cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (b) If for any reason the Commission does not permit all 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 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 Securities. It is agreed and understood that the Company shall prepare and shall, from time to time, be obligated to 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 to cover any Registrable Securities which are not already covered by an existing and effective Registration Statement registered for an offering to be made on a continuous basis resale 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 a pre-existing 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 reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its entire Effectiveness PeriodStatement.
(c) If: (i) a the Registration Statement is not filed on or prior to its the 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 Section 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i))Date, or (ii) a if such Registration Statement is has not been declared effective by the Commission on or prior to its required Effectiveness within ninety (90) days of the Filing Date, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), Date such Registration Statement ceases for any reason to be effective and available to the Purchaser Holders as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than 20 consecutive Trading Days or an aggregate of 20 50 Trading Days for all such events (any which need not be consecutive)(any such failure or breach being referred to as an “Event,” and for purposes of clauses clause (i) and (ii) the date on which such Event occurs, or for purposes of clause (iiiii) the date on which such 20 consecutive or 50 Trading Day period (as applicable) is exceeded, being referred to as “Event Date”), thenthen in addition to any other rights available to the Holders: on such Event Date the Company shall pay to each Holder an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based on the Purchase Price and not as a penalty, equal to two percent (2%) of the affected Registrable Securities aggregate Subscription Amount paid by the Purchaser such Holder 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 issuance of Additional Notes (as defined in the Note), to the Purchaser on each monthly anniversary of each such Event Date thereof (if the applicable Event remedy 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 be exclusive of 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 remedies available 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 Underlying Shares that are no longer Registrable SecuritiesAgreement).
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities Each Holder shall furnish to the Company a completed Questionnaire in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that form as provided by the number of Registrable Securities Company (a “Selling Holder Questionnaire”). The Company shall not be cutback 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 such Registration Statements as Holder who fails to furnish to the Company a result of such piggy-back rightsfully completed Selling Holder Questionnaire at least ten Trading Days prior to the Filing Date.
Appears in 1 contract
Sources: Registration Rights Agreement (Lifesciences Opportunities Inc)
Registration. (a) On or prior to the each Filing Date, the Company shall will use reasonable best efforts to prepare and file with the 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. The Registration Statement (i) 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, in which case such registration shall be on another appropriate form for such purpose)) and, if the Company is a WKSI as of the 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. The Company shall will 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 or otherwise 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 become effective under the Securities Act as soon as possible but, in any event, no later than its the Effectiveness Date, and shall will use its reasonable best efforts to keep the Registration Statement (or a replacement Registration Statement) continuously effective under the Securities Act until the registration rights under this Agreement terminate in accordance with Section 2(c) (the “Effectiveness Period”). In addition, the Company will, promptly and from time to time, use reasonable best 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 reasonable best efforts to cause such Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as practicable after the applicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and will use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act at all times during its entire the Effectiveness Period; provided that, the Company will not be obligated to update the Registration Statement and no sales may made under the applicable Registration Statement during any Black-Out Period of which the Holders have received actual notice; provided further that, the Company will not be obligated to amend the Registration Statement (which amendment may be effected through a Prospectus) or file any additional Registration Statement to add additional Holders as selling securityholders therein until such time as the Company has received completed Questionnaires with respect to at least $100,000,000 aggregate principal amount of Registrable Securities and in no event more than once in any fiscal quarter.
(b) If the Company at any time during a period the Registration Statement is effective reasonably determines in good faith and in its reasonable judgment that (i) the ongoing registration would be reasonably likely to materially interfere with a bona fide business or financing transaction of the Company, would require premature disclosure of information (the premature disclosure of which could materially and adversely affect the Company) or would otherwise be seriously detrimental to the Company or (ii) that the Registration Statement is subject to a stop order, is no longer effective or is otherwise not Available for use, the Company may suspend sales of securities pursuant to the Registration Statement for a period of not more than seventy five (75) consecutive calendar days or an aggregate of one hundred twenty (120) days in any twelve month period (a “Black-Out Period”) and agrees to (i) furnish to each Holder a certificate signed by an officer of the Company to that effect and (ii) notify each Holder promptly upon each of the commencement and termination of each Black-Out Period. Each Holder agrees that, upon any such notice from the Company, it will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement until receipt of the Company’s notice as to the termination of the Black-Out Period. Each of the Holders agree to keep the notice of Black-Out Period confidential and shall not disclose such notice or reasons to any Person other than such Holder’s legal counsel or as required by law.
(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 Purchaser 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 (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c), such Registration Statement ceases for any reason to be effective and available to the Purchaser as 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 issuance of Additional Notes (as defined in the Note), to 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 Underlying Shares that are no longer Registrable Securities.
(d) Registration Statements registration rights granted under this Section 2 may contain shares other than shall automatically terminate upon the earliest of (i) such time as there are no outstanding Registrable Securities, (ii) such time as the Holders, together with all Affiliates, hold Registrable Securities in accordance with the requirements an aggregate principal amount of piggy-back rights granted under predecessor agreementsless than $100,000,000 and (iii) August 15, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights2021.
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Sources: Registration Rights Agreement (Avago Technologies LTD)
Registration. (a) On or prior Within 30 days of the date of the final closing under the equity financing currently being conducted by the Company (which is currently set to occur on April 6, 2007 but may be extended in the Filing Datesole discretion of the Company’s Board of Directors), the Company shall prepare and file with the 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. The Registration Statement shall be , on Form S-3 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form appropriate form for such purpose). 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 commercially reasonable best efforts to cause the such Registration Statement to be declared effective under the Securities Act no later than the Effectiveness Date, as soon as possible and shall use its commercially 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 its Effective Date, (ii) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Purchaser▇▇▇▇▇▇, or (iii) such time as all of the Registrable Securities covered by such Registration Statement may be sold by ▇▇▇▇▇▇ 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 “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 included in a then covered by an effective Registration Statement filed under this AgreementStatement, 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 S-1 (except if the Company is not then eligible to register for resale the Registrable Securities or on Form S-3, in which case such registration shall be on another other form 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 commercially 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 by its Effectiveness Date, and shall use its commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during its the entire Effectiveness Period.
(c) ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ in a Registration Statement if ▇▇▇▇▇▇ fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the filing of the applicable Registration Statement. ▇▇▇▇▇▇ acknowledges that the Company may, in its sole discretion, include shares of capital stock held by other selling stockholders on any Registration Statement covering the resale of the Registrable Securities.
(d) 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 Purchaser the opportunity to review and comment on the same as required by Section 3(a) hereofJune 1, the Company shall not be deemed to have satisfied this clause (i))2007, or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness DateAugust 15, 2007, or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor other than a Suspension Event in compliance with Section 6(c)therefore, such Registration Statement ceases for any reason to be effective and and/or available to the Purchaser ▇▇▇▇▇▇ as to all Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period, Period for more than an aggregate of 20 60 Trading Days for all such events (which need not be consecutive) in any twelve (12) month period (any such failure or breach being referred to as an “Event,” ”, and for purposes of clauses (i) and or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date on which such 20 60 Trading Day period is exceeded, being referred to as “Event Date”), thenthen (x) on each such Event Date the Company shall pay to ▇▇▇▇▇▇ an amount in cash, for so long as such event is within the Effectiveness Period, partial liquidated damages will accrue based and not as a penalty, equal to 1.5% of the value of the Shares on the Purchase Price date of the affected Registrable Securities paid by the Purchaser pursuant to the Purchase Agreement from this Agreement; 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 issuance of Additional Notes (as defined in the Note), to the Purchaser 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 ▇▇▇▇▇▇ an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.5% of the value of the Shares on the date of this Agreement; provided, however, in no event shall the Company pay any amounts hereunder in excess of twelve percent (12%) of the value of the Shares on the date of this 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 ▇▇▇▇▇▇, 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 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 other than with respect to the initial Event Date thereofDate. Following the cure of all Events, the accrual of liquidated damages shall cease. The liquidated damages under this Section 2(c) Such payments 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 Underlying Shares that are no longer Registrable Securitiessuch events.
(d) Registration Statements under this Section 2 may contain shares other than Registrable Securities in accordance with the requirements of piggy-back rights granted under predecessor agreements, provided, that the number of Registrable Securities shall not be cutback under any such Registration Statements as a result of such piggy-back rights.
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