Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities. (b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company. (c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement. (d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable. (e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 4 contracts
Sources: Registration Rights Agreement (Black Titan Corp), Registration Rights Agreement (Titan Pharmaceuticals Inc), Registration Rights Agreement (Black Titan Corp)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities, (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no Registerable Securities and (iii) the date on which all of the Registrable Securities have been sold or may be sold without any restrictions restriction pursuant to Rule 144, 144 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Business Day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 4 contracts
Sources: Registration Rights Agreement (La Rosa Holdings Corp.), Registration Rights Agreement (La Rosa Holdings Corp.), Registration Rights Agreement (ECD Automotive Design, Inc.)
Registration. (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Company shall use good faith efforts to include the Registrable Securities in the Company’s Registration Statement on Form S-1 as filed with the Commission on July 25, 2007. If such inclusion is not permitted by the selling security holders thereunder, or is otherwise impractical, then the Registrable Securities shall be included in the Company’s next succeeding registration obligations stated statement. The Registration Statement shall be on Form S-1 or SB-2. The Company shall cause such Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable commercial efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in this Section 2, including any event no later than the Effectiveness Date. The Company shall use its obligations, as set forth herein, reasonable commercial efforts to file and obtain and maintain effectiveness of keep such Registration Statement continuously effective under the Registration Statement, shall begin on Securities Act until the date hereof and continue until which is the earlier date of when (i) all the Registrable Securities have been sold or (ii) all Registrable Securities may be sold immediately without any registration under the Securities Act and without volume restrictions pursuant to Rule 144144(k), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Registration Effectiveness Period”). No Notwithstanding anything contained herein to the contrary, in the event that the Commission limits the amount of Registrable Securities that may be sold by selling security holders in a particular Registration Statement shall register any security other than Statement, or the Commission takes the position that the all or a portion of the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred)Securities cannot be registered, the Company shall file a Registration Statement may exclude from such registration statement the minimum number of Registrable Securities on Form S-3 (or, if behalf of the Lender as is necessary to comply with such limitation by the Commission. In such event the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale shall give the Lender prompt notice of the number of the Registrable SecuritiesSecurities so excluded. Further, and in addition to the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Dateforegoing, the Company shall file with will not be liable for payment of any damages or penalties for any delay in registration of the SEC, Registrable Securities in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant event that such delay is due to the Registration Statement. Before filing fact that the Registration Statement, SEC has limited the Company shall furnish a draft amount of it to the Investor for its review Registrable Securities that may be included and comment. The Company shall include Investor’s reasonable comments sold by selling security holders in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during 415 promulgated under the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement 1933 Act or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementother basis.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 4 contracts
Sources: Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp)
Registration. (a) The Company’s registration obligations stated in this Section 2Company shall, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than March 31, 2016 (the closing “Filing Deadline”), prepare and file with the SEC a Registration Statement covering the resale of all Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement shall be on Form F-3 (or, if Form F-3 is not then available to the Company, on such form of Registration Statement as is then available to effect a registration for resale of the Fundamental Transaction Registrable Securities). The Company shall use its best efforts (i) to cause such Registration Statement to be declared effective by the SEC under the Securities Act (unless it becomes effective automatically upon filing) as promptly as possible after the filing thereof, and shall respond to any comments received from the SEC within ten (10) Business Days, and (ii) to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date on which all Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restriction pursuant to Rule 144 (the “Initial Effectiveness DateEffective Period”). By 9:30 a.m.Such Registration Statement shall not include any Ordinary Shares or other securities for the account of any other holder without the prior written consent of Investor. Notwithstanding the registration obligations set forth in this Section 8.16, New York timeif 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 the Trading Day following the Initial Effectiveness Datea single registration statement, the Company shall agrees to promptly (i) inform each Holder and use its best efforts to file with amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, in accordance with on Form F-3 or such other form available to register for resale the Registrable Securities Act Rule 424 (“Rule 424”)as a secondary offering; provided, the final Prospectus however, that prior to be used in connection with sales pursuant to the Registration Statement. Before filing the such amendment or New Registration Statement, the Company shall furnish a draft be obligated to use its best efforts to advocate with the SEC for the registration of it to all of the Investor for its review and commentRegistrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the SEC’s staff (“Commission Guidance”). The In the event the Company shall include Investor’s reasonable comments in amends the Registration Statement given within 48 hours 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 receipt thereof from filing deadline of a New Registration Statement and an Additional Registration Statement shall be the Companytenth (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.
(cb) During Subject to the Registration Periodrequirements of Section 8.16(a) regarding the Filing Deadline, subject whenever required to Section 2(d)effect the registration of any Registrable Securities under this Agreement, the Company shall, promptly, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and use its best efforts to cause a Registration Statement that registers such Registrable Securities to become effective, and keep such Registration Statement effective until all of the Registrable Securities have been disposed of;
(ii) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the such Registration Statement and related the Prospectus to be filed pursuant to Rule 424, used in connection with such Registration Statement as may be necessary to keep such the Registration Statement effective at all times during for the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from Effective Period and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities of the Company securities covered by such Registration Statement;
(iii) furnish to each Holder a Prospectus (which requirement may be fulfilled by the public filing of such Prospectus on ▇▇▇▇▇, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as the Investor may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration;
(iv) notify each Holder and its counsel in writing (i) of the receipt by the Company of any notification with respect to any comments by the SEC with respect to such Registration Statement until or Prospectus or any amendment or supplement thereto or any request by the SEC for the amending or supplementing thereof or for additional information with respect thereto, (ii) of the receipt by the Company of any notification with respect to the issuance by the SEC of any stop order suspending the effectiveness of such time as all Registration Statement or Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose, (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Securities shall have been disposed for sale in any jurisdiction or the initiation or threatening of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments any proceeding for such purposes, and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)iv) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, existence of any fact or Form 8-K or the happening of any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for event that causes the Company to amend or supplement the Registration Statement.become an “ineligible issuer,” as defined in Rule 405;
(dv) Beginning 60 days after use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend any suspension of the qualification (or supplement exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment;
(vi) use its best efforts to register and qualify the securities covered by such Registration Statement under such other securities Laws of such jurisdictions as shall be reasonably requested by the Investor;
(vii) immediately notify each Holder, at any time prior to the end of the Effective Period, upon discovery that, or Related upon the happening of any event as a result of which, the Prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Holder a supplement to or an amendment of such Prospectus as may be necessary so that the Registration Statement or such Prospectus does shall not include an 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, therein not misleading in the case of the Prospectus in light of the circumstances under which they were made, not misleading then existing;
(an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (zviii) use its best efforts to terminate list such Registrable Securities on each securities exchange on which the Ordinary Shares (including American depositary shares representing the Ordinary Shares) are then listed; and
(ix) cooperate with each Holder and the Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends. In connection therewith, if required by the Company’s agent which maintains the register of members of Ordinary Shares or the Depositary, the Company shall promptly after the effectiveness of the Registration Statement cause an Allowed Delay opinion of legal counsel as promptly as practicableto the effectiveness of the Registration Statement to be delivered to such agent or the Depositary, together with any other authorizations, certificates and directions requested by such agent or the Depositary, which authorize and direct such agent or the Depositary to issue such Registrable Securities without legend upon sale by the Investor under the Registration Statement.
(ec) For The Company understands that each Holder disclaims being an underwriter, but in the event any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement Holder is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424deemed an underwriter, the Company shall, on the first day shall not be relieved of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30any obligations it has hereunder.
Appears in 3 contracts
Sources: Convertible Note and Warrant Purchase Agreement, Convertible Note and Warrant Purchase Agreement (The9 LTD), Convertible Note and Warrant Purchase Agreement (Ark Pacific Investment Management LTD)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or on which these may permanently be sold without any restrictions pursuant to Rule 144, 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 (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 F-3 (or, if the Company is ineligible to file not then eligible, on Form S-3F-1) or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC rules, then on Form S-1) with respect regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 3 contracts
Sources: Registration Rights Agreement (Next.e.GO N.V.), Registration Rights Agreement (Next.e.GO N.V.), Registration Rights Agreement (Next.e.GO N.V.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities, (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no Registerable Securities and (iii) the date on which all of the Registrable Securities have been sold or may be sold without any restrictions restriction pursuant to Rule 144, 144 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 F-3 (or, if the Company is ineligible to file not then eligible, on Form S-3F-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with applicable SEC rules, then on Form S-1) with respect regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Business Day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 3 contracts
Sources: Registration Rights Agreement (ROBO.AI Inc.), Registration Rights Agreement (Linkage Global Inc), Registration Rights Agreement (BIT ORIGIN LTD)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold On or may be sold without any restrictions pursuant to Rule 144, as determined by the counsel prior to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Filing Date, the Company shall prepare and file with the SECCommission the Registration Statement covering the resale of the 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 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 in accordance with Securities Act Rule 424 (“Rule 424”herewith), the final Prospectus . Not less than ten business days prior to be used in connection with sales pursuant to the Registration Statement. Before filing of the Registration Statement, the Company shall furnish provide each Holder with a draft copy of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject proposed to Section 2(d), the Company shall, promptly, (i) prepare be filed and file shall consider all appropriate comments that are timely provided by such Holder with the SEC such amendments (including post-effective amendments) and supplements respect to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject Statement. Subject to the terms of this Agreement, the Company shall use its commercially 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 in any event prior to the Effectiveness Date, and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of (i) andall Registrable Securities covered by the Registration Statement have been sold or (ii) subject to the next successive sentence, (A) Hercules, together with any of its affiliates, owns less than 10% of the issued and outstanding Common Stock and (B) the Registrable Securities may be sold free of any restrictions under Rule 144 (the “Effectiveness Period”). Upon the Registration Statement ceasing to be effective in connection with clause (ii) of this section, the Company shall take, at its sole expense, such further action, including the provision of a legal opinion, as so supplemented any Holder may reasonably request from time to time to enable such Holder to sell the Registrable Securities without registration under the Securities Act.
(b) The Company shall notify the Holders via facsimile or amendedelectronic mail of the effectiveness of the Registration Statement within three Trading Days of the Company telephonically confirming effectiveness with the Commission. The Company shall, by 9:30 AM Eastern Time on the Trading Day that is three Trading Days after the Effective Date, file a Form 424(b)(5) with the Commission.
(c) If (i) the Registration Statement is not filed on or prior to the Filing Date, or (ii) the Registration Statement covering the Registrable Shares ceases to be filed pursuant to Rule 424; effective or usable at any time during the Effectiveness Period (iii) respond to any comments received from without being succeeded on the SEC with respect same date immediately by a post-effective amendment or supplement to the Registration Statement or any amendment thereto that cures such failure and as promptly as reasonably possible provide that is itself, in the Investor true and complete copies case of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply a post-effective amendment, declared effective within ten Trading Days of filing with the provisions of Commission) or the Securities Act with respect Holders are not permitted to utilize the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of Prospectus therein to resell such Registrable Securities for 20 consecutive Trading Days or in any individual case an aggregate of 30 Trading Days during any twelve-month period (which need not be consecutive Trading Days) (any of the foregoing being a “Registration Default” and for purposes of clause (i) the date on which such Registration Default occurs, or for purposes of clause (ii) the date on which such 20 or 30 Trading Day period, as applicable, is exceeded, each being a “Registration Default Date”) then, subject to Section 3, the Company shall have been disposed pay to each Holder an amount in cash, as liquidated damages and not a penalty (“Liquidated Damages”) equal to 1% of in accordance with the intended methods sum of: (A) the Converted Term Loan C Debt Amount which was converted into Common Stock pursuant to Section 2.10 of disposition by the seller or sellers thereof as set forth in A/R Loan Agreement, plus (B) any interest paid through the issuance of Shares pursuant to Section 2.4 and Section 2.5(a)(iv) of the A/R Loan Agreement, to which the Registration Statement. In the case Default relates per month of amendments and supplements to time between the Registration Statement required Default Date and the date such Registration Default is cured, prorated for any period less than one month. The foregoing represents the sole monetary remedy to be filed pursuant any Holder in connection with any Registration Default. The Company shall pay the Holders any Liquidated Damages accrued for the first month after a Registration Default Date within seven calendar days after the end of such month, and any Liquidated Damages accrued for any subsequent month within seven calendar days after the end of such month. If the Company fails to this Agreement (including pay any Liquidated Damages pursuant to this Section 2(c)) by reason of in full within seven days after the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actdate 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. A Registration Default under clause (i) above shall incorporate such report by reference into be cured on the date that the Registration Statement, if applicable, or shall file such amendments or supplements Statement is filed with the SEC and a Registration Default under clause (ii) above shall be cured on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement date that the Registration StatementStatement covering the Permitted Shares is declared effective by the SEC or is otherwise usable. Notwithstanding the foregoing, no Liquidated Damages shall accumulate as to any Registrable Security from and after the earlier of (A) the date such security is no longer a Registrable Security and (B) expiration of the Effectiveness Period.
(d) Beginning 60 days after effectiveness of The Company shall not be liable for any Liquidated Damages under Section 2(c) if the Registration Statement, upon Holders are not permitted to utilize the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, Prospectus because the Company may suspend the use is negotiating a merger, consolidation, acquisition or sale of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure all or substantially all of material nonpublic information concerning the Company, the disclosure of which at the time is notits assets or a similar transaction which, in the good faith opinion judgment of the CompanyBoard of Directors, requires the Registration Statement to be amended to include information in connection with such pending transaction (including the parties thereto) and such information is not yet available or publicly disclosable, or the Company is otherwise aware of such other material non-public information which, in the best interests good faith judgment of the Company or (ii) amend or supplement Board of Directors, requires the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary amended to make the statements thereininclude such other material non-public information and such information is not yet publicly disclosable, in the case for an aggregate of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable30 consecutive days.
(e) For any calendar month or part Each Holder agrees to furnish to the Company (i) a completed selling stockholder questionnaire not more than ten Trading Days before the filing of a month (“Delay Period”) that the Registration Statement has and (ii) such other information the Company reasonably requires to prepare the Registration Statement. Each Holder further agrees that it shall not been declared effective by the Initial Effectiveness Date, or, subject be entitled to Section 2(d), be named as a selling stockholder in the Registration Statement is not effective or use the Prospectus cannot for offers and resales of Registrable Securities at any time, unless such Holder has returned this information to the Company. Each Holder acknowledges and agrees that the information in the selling stockholder questionnaire or request for further information as described in this Section 2(e) will be used or has not been filed pursuant to Rule 424, by the Company shall, on in the first day preparation of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, Registration Statement and not as penalty, an amount equal hereby consents to the product obtained by multiplying $20,000 by a fraction, inclusion of such information in the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Registration Statement.
Appears in 3 contracts
Sources: Registration Rights Agreement (Hercules Technology I, LLC), Loan and Security Agreement (Hercules Technology I, LLC), Registration Rights Agreement (InfoLogix Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to each Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 (except if the Company later becomes eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on such other available form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such H▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 4(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold sold, thereunder or pursuant to Rule 144, or (ii) may be sold without any volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed addressed, delivered, and reasonably acceptable to the Company’s transfer agent Transfer Agent and the affected Holders (the “Registration Effectiveness Period”). No The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall register any security other than immediately notify the Registrable SecuritiesHolders via e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Within 10 days after Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company consummates that all of the Registrable Securities cannot, as a “Fundamental Transaction” (result of the application of Rule 415, be registered for resale as defined in a secondary offering on a single registration statement, the Certificate Company agrees to promptly inform each of Designations the Holders thereof and use its commercially reasonable efforts to file one or more amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-1 or such other form available to register for resale the Convertible PreferredRegistrable Securities as a secondary offering, subject to the provisions of Section 2(e); provided, however, that prior to filing any such amendment, the Company shall file a Registration Statement on Form S-3 be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(orc) Notwithstanding any other provision of this Agreement, if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company is ineligible used diligent efforts to file on Form S-3advocate with the Commission for the registration of all or a greater portion of Registrable Securities), then on Form S-1) with respect unless otherwise directed in writing by a Holder as to Investor’s resale of the its Registrable Securities, and the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
a. First, the Company shall use reasonable best efforts to cause the registration statement reduce or eliminate any securities to be declared effective included other than Registrable Securities;
b. Second, the Company shall reduce Registrable Securities represented by Shares and Warrant Shares (applied, in the closing case that some Shares and Warrant Shares already are registered, to the Holders on a pro rata basis based on the total number of unregistered Shares and Warrant Shares held by such Holders). In the Fundamental Transactionevent of a cutback hereunder, the Company shall give each affected Holder at least five (5) Trading Days prior written notice, along with the calculations as to such H▇▇▇▇▇’s pro rata allotment of Registrable Securities to be registered after giving effect to such cutback. The In the event the Company amends the Initial Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sectionsin accordance with the foregoing, as specified by Investor. The the Company shall will use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SECCommission, in accordance with Securities Act Rule 424 (“Rule 424”), as promptly as allowed by the final Prospectus to be used in connection with sales pursuant Commission or SEC Guidance provided to the Registration Statement. Before filing Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 3 contracts
Sources: Registration Rights Agreement (Banzai International, Inc.), Registration Rights Agreement (Banzai International, Inc.), Registration Rights Agreement (Banzai International, Inc.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities, and (ii) the date on which all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Business Day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 3 contracts
Sources: Registration Rights Agreement (New Era Helium Inc.), Registration Rights Agreement (New Era Helium Inc.), Registration Rights Agreement (New Era Helium Inc.)
Registration. As soon as reasonably practicable, but no event later than 50 days after the Closing, Amicus shall prepare and file with the SEC a Registration Statement covering the resale of all, or such portion as permitted by SEC Guidance (a) The Company’s provided that, Amicus shall use commercially reasonable efforts to advocate with the SEC for the registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all maximum number of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144permitted by SEC Guidance), 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 (the “Registration Period”). No Registration Statement shall register any security other than of the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file Securities and use commercially reasonable efforts to cause a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by (including, without limitation, the closing execution of any required undertaking to file post-effective amendments) as promptly as possible after the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicablefiling thereof, but in no event later than ten (10) business days after the closing SEC has notified that Amicus that it will not review, or has completed its review, of the Fundamental Transaction Registration Statement. The Registration Statement shall be on Form S-3 (“Initial Effectiveness Date”except if Amicus fails to meet one or more of the registrant requirements specified in General Instruction I.A. on Form S-3, such registration shall be on another appropriate form in accordance herewith). By 9:30 a.m.In the event that, New York timedespite Amicus’s commercially reasonable efforts and compliance with the terms of this Section 6.1, on the Trading Day following the Initial Effectiveness DateSEC refuses to alter its position, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in i) remove from the Registration Statement given within 48 hours such portion of the receipt thereof from the Company.
Registrable Securities (c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; Cut Back Shares”) and/or (ii) cause agree to such restrictions and limitations on the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to registration and resale of the terms Registrable Securities as the staff of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect may require to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply assure Amicus’s compliance with the provisions requirements of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement Rule 415 (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actcollectively, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the “SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed DelayRestrictions”); provided, however, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but Amicus shall not (agree to name any Purchaser as an “underwriter” in such Registration Statement without the prior written consent of such Purchaser. Any cutback imposed on the Investor) disclose Purchasers pursuant to this Section 6.1 shall be allocated among the Investor any material nonpublic information giving rise to an Allowed DelayPurchasers on a pro rata basis, (y) advise unless the Investor in writing to cease all sales under such Registration Statement until SEC Restrictions otherwise require or provide or the end Purchasers holding a majority of the Allowed DelayRegistrable Shares otherwise agree. From and after the such date as the Company is able to effect the registration of such Cut Back Shares in accordance with any SEC Restrictions (such date, and the “Restriction Termination Date” of such Cut Back Shares) applicable to any Cut Back Shares, all of the provisions of this Section 6 shall again be applicable to such Cut Back Shares; provided, however, that (zx) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Filing Deadline for the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which including such Cut Back Shares shall be the number of 10 business days in that Delay Period, and the denominator of which is 30after such Restriction Termination Date.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Amicus Therapeutics, Inc.), Securities Purchase Agreement (Amicus Therapeutics, Inc.), Securities Purchase Agreement (Amicus Therapeutics, Inc.)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Deadline), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than one hundred (100) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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, shall begin on Statement will not be “reviewed,” or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) the date on which all Registrable Securities may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s transfer agent to such effect (the “Registration Effectiveness Period”). No Upon the initial filing thereof and upon the filing of any pre-effective amendment thereto, the Registration Statement shall register any security other than cover all of the Shares and 115% of the shares of Common Stock for issuance upon the exercise of the Warrants. If the Commission informs the Company that it will not allow the Registration Statement to cover at least 115% of the shares of Common Stock for issuance upon the exercise of the Warrants, then the Registration Statement shall cover the highest percentage of such Common Stock that the Commission will allow. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 3 contracts
Sources: Investor Rights Agreement (Avatech Solutions Inc), Investor Rights Agreement (Avatech Solutions Inc), Common Stock and Warrant Purchase Agreement (Avatech Solutions Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligationsCompany shall, as set forth hereinsoon as practicable after the date of this Agreement, to file and obtain and maintain effectiveness with the SEC means one or more registration statements of the Registration Statement, shall begin on Company covering the date hereof and continue until all sale of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, (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 defined below) (the “Registration PeriodStatement”). No Registration Statement ) covering the maximum number of Commitment Shares, Conversion Shares which may, from time to time, be issued to the Buyer under the Notes and Exercise Shares, which may, from time to time, be issued to Buyer under the Warrants (collectively, the “Registrable Securities”) as shall register be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Buyer (in any security other event, no less than the Registrable Securities.
(b) Within 10 days after number of shares of Common Stock equal to the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations Exchange Cap for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to InvestorBuyers’s resale of the Registrable Securities), including but not limited to under Rule 415 under the 1933 Act at then prevailing market prices (and not fixed prices), subject to the aggregate number of authorized shares of the Company’s Common Stock then available for issuance in its Certificate of Incorporation. The Buyer and its counsel shall have a reasonable opportunity to review and comment upon such Registration Statement and any amendment or supplement to such Registration Statement and any related prospectus prior to its filing with the SEC, and the Company shall use give due consideration to all reasonable best efforts to cause the registration statement to be declared effective comments. The Buyer shall furnish all information reasonably requested by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by InvestorCompany for inclusion therein. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than within ninety (90) calendar days from the closing of date hereof (or at the Fundamental Transaction earliest possible date if prior to ninety (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on 90) calendar days from the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”date hereof), the final Prospectus to be used in connection with sales pursuant and any amendment to the Registration Statement. Before filing Statement thereafter declared effective by the Registration Statement, SEC at the Company shall furnish a draft of it to the Investor for its review and commentearliest possible date. The Company shall include Investor’s reasonable comments in keep the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Periodeffective, subject including but not limited to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective 415 promulgated under the 1933 Act and available for the resale by the Buyer of all of the Registrable Securities covered thereby at all times during until the date on which the Buyer shall have sold all the Registrable Securities covered thereby (the “Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the ”). The Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(dthereto and prospectuses contained therein) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for shall not more than 20 consecutive days or for a total of not more than 30 days in contain any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading misleading. In the event that (an “Allowed Delay”); providedi) the Registration Statement becomes stale after the initial effectiveness of such Registration Statement and (ii) the Buyer still has ownership of any of the Registrable Securities, that the Company shall promptly (x) notify immediately file one or more post-effective amendments to facilitate the Investor in writing SEC’s declaration of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose effectiveness with respect to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableStatement.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 3 contracts
Sources: Securities Purchase Agreement (NKGen Biotech, Inc.), Securities Purchase Agreement (NKGen Biotech, Inc.), Securities Purchase Agreement (NKGen Biotech, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all 125% of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (unless otherwise directed by the Holders) substantially the "Plan of Distribution" attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its best 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 prior to the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or may be sold without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s 's transfer agent and the affected Holders (the “Registration "Effectiveness Period”"). No The Company shall immediately notify the Holders via facsimile of the effectiveness of the Registration Statement on the same day that the Company receives notification of the effectiveness from the Commission. Failure to so notify the Holder within 1 Trading Day of such notification shall register any security other than the Registrable Securitiesbe deemed an Event under Section 2(b).
(b) Within 10 days after If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company consummates files a “Fundamental Transaction” (Registration Statement without affording the Holders the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferredrequired by Section 3(a), 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 a Registration Statement on Form S-3 will not be "reviewed," or not subject to further review; or (or, if the Company is ineligible iii) prior to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall fails to file with a pre-effective amendment and otherwise respond in writing to comments made by the SECCommission in respect of such Registration Statement within 14 calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective; or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission by its Effectiveness Date; or (v) after the Effectiveness Date, in accordance with a Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities Act Rule 424 for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities for 10 consecutive calendar days but no more than an aggregate of 15 calendar days during any 12-month period (“Rule 424”which need not be consecutive Trading Days) (any such failure or breach being referred to as an "Event", and for purposes of clause (ii) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clause (iii) the date which such 14 calendar day period is exceeded, or for purposes of clause (v) the date on which such 10 or 15 calendar day period, as applicable, is exceeded being referred to as "Event Date"), then in addition to any other rights the final Prospectus to be used in connection with sales pursuant to Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the Registration Statement. Before filing applicable Event shall not have been cured by such date) until the Registration Statementapplicable Event is cured, the Company shall furnish pay to each Holder an amount in cash, as partial liquidated damages and not as a draft of it penalty, equal to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours 1.5% of the receipt thereof from outstanding principal of the Company.
Notes for any Registrable Securities then held by such Holder for the first 30 days (cpro-rated for partial months) During after the Registration Period, subject to Section 2(dEvent Date and an additional 1.5% for any subsequent 30-day period (pro-rated for partial months), thereafter. If the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements fails to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by pay any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including partial liquidated damages pursuant to this Section 2(c)) by reason of in full within seven days after the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actdate payable, the Company shall incorporate will pay interest thereon at a rate of 20% per annum (or such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report lesser maximum amount that is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required permitted to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (xpaid by applicable law) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part portion of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal prior to the product obtained by multiplying $20,000 by a fraction, the numerator cure of which shall be the number of days in that Delay Period, and the denominator of which is 30an Event.
Appears in 2 contracts
Sources: Registration Rights Agreement (Global Axcess Corp), Registration Rights Agreement (Global Axcess Corp)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 or F-3 (or, if the Company is ineligible to file not then eligible, on Form S-3S-1 or Form F-1) or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC rules, then on Form S-1) with respect regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Plum Acquisition Corp. III), Registration Rights Agreement (Tactical Resources Corp.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the Registration Statement, Statement that have been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may permanently be sold without any restrictions pursuant to Rule 144, 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 “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall shall, on or prior to the Filing Deadline, prepare and file with the SEC a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) with respect to Investor’s covering the resale by the Investor of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Each Registration Statement (and any amendment or supplement) prepared pursuant hereto shall register for resale at least the number of shares of Common Stock equal to the Required Registration Amount as of date the Registration Statement is initially filed with the SEC. Each Registration Statement shall contain the “Selling Stockholders” and “Plan of Distribution” sections, sections in substantially the form attached hereto as specified by Investor. Exhibit A and contain all the required disclosures set forth on Exhibit B. The Company shall use its best efforts to have the each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day date following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 twenty-four (24) hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Q BioMed Inc.), Registration Rights Agreement (Q BioMed Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to the Filing Deadline, including its obligations, as set forth herein, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities then issuable and not already covered by an existing and effective Registration Statement for an offering to file and obtain and maintain effectiveness of be made on a continuous basis pursuant to Rule 415 (the “Initial Registration Statement, ”). The Initial Registration Statement shall begin be on Form S-3 (except if the date hereof and continue until all 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 in accordance with the Securities Act) 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. In the event the number of shares available under the Initial Registration Statement is insufficient to cover all of the Registrable Securities issuable pursuant to the Transaction Documents (as defined in the Purchase Agreement) from time to time, upon written request from a Holder, the Company shall amend the Initial Registration Statement or file a new Registration Statement (a “New Registration Statement”), so as to cover all of such Registrable Securities as soon as practicable, subject to any limits that may be imposed by the SEC pursuant to Rule 415 under the Securities Act.
(b) The Company shall use its reasonable commercial efforts to cause each Registration Statement to be declared effective by the Commission as soon as practicable and no later than the Effectiveness Deadline, and shall use its reasonable commercial efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders or (ii) the date that all Registrable Securities covered by such Registration Statement may be sold without any restrictions pursuant to Rule 144144 in transactions in which the requirements of paragraph (c)(1) thereof do not apply, 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 Transfer Agent and the affected Holders (the “Registration Effectiveness Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the The Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The ensure that each Registration Statement (and including any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(dthereto and prospectuses contained therein) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for shall not more than 20 consecutive days or for a total of not more than 30 days in contain any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, therein (in the case of prospectuses, in the Prospectus in light of the circumstances under in which they were made) not misleading. Each Registration Statement shall also cover, not misleading to the extent allowable under the Securities Act and the rules promulgated thereunder (an “Allowed Delay”including Rule 416); provided, such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Company shall notify the Holders of the effectiveness of a Registration Statement on the same Trading Day that the Company shall promptly (x) notify confirms effectiveness with the Investor in writing of Commission and shall, by 8:30 am prevailing New York City time on the commencement (and Trading Day after the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Effective Date, or, subject to Section 2(d), file a final Prospectus with the Registration Statement is not effective or the Prospectus cannot be used or has not been filed Commission pursuant to Rule 424, .
(c) In the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be event that both (i) the number of days shares of Common Stock beneficially held by Investor falls below twenty percent (20%) of the outstanding Common Stock on an as-converted basis, as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder and (ii) Investor is an affiliate (as that Delay Periodterm is defined under Rule 144) at the time of the Reload Request (as defined below) (the “Reload Trigger”), the Company, upon written request from Investor (the “Reload Request”), shall prepare and file with the Commission one, and only one, additional Registration Statement (the denominator “Reload Registration Statement”) covering the resale of which is those shares of Common Stock owned by Investor as of the date of the Reload Request that, as of such time, are not registered for resale under the Securities Act (collectively, “Reload Securities”). The same terms and conditions applicable to the Initial Registration Statement shall apply to the Reload Registration Statement, including, without limitation, a 60-day Filing Deadline and a 30-day Effectiveness Deadline (subject to adjustment as set forth above), and from and after the date of the Reload Request, “Registrable Securities” shall be deemed to include the Reload Securities.
(d) Each Holder agrees to furnish to the Company a completed and executed Selling Stockholder Questionnaire. The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement who fails to furnish to the Company a fully completed and executed Selling Stockholder Questionnaire at least two Trading Days prior to the Filing Deadline, or if sooner, five Trading Days after the Company furnishes copies of the sections of the Prospectus, as contemplated by Section 3(a).
Appears in 2 contracts
Sources: Stock Exchange and Loan Agreement (Navidea Biopharmaceuticals, Inc.), Registration Rights Agreement (Navidea Biopharmaceuticals, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to the Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness of with the Commission the Registration Statement, shall begin on Statement covering the date hereof and continue until resale of all of the Registrable Securities 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 the Registration Statement shall be on another appropriate form in accordance herewith). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its commercially reasonable 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 not later than the Effectiveness Date, and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is two years after the Closing Date or such later date when all Registrable Securities covered by the Registration Statement (a) have been sold pursuant to the Registration Statement or an exemption from the registration requirements of the Securities Act or (b) may be sold without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Registration Effectiveness Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company consummates files a “Fundamental Transaction” (Registration Statement without affording the Holder the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferredrequired by Section 3(a), the Company shall not be deemed to have satisfied this clause (i)); provided, however, that if a Holder fails to provide the Company with any information that is required to be provided in the Registration Statement with respect to such Holder pursuant to Section 3(k), then the Filing Date shall be extended until two Trading Days following the date of receipt by the Company of such required information, 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 a Registration Statement on Form S-3 will not be “reviewed,” or not subject to further review, or (oriii) prior to the date when such Registration Statement is first declared effective by the Commission, if the Company is ineligible 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 ten Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective, or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission on Form S-3or before the Effectiveness Date, then on Form S-1or (v) with respect after a Registration Statement is first declared effective by the Commission, it ceases for any reason to Investor’s resale of remain continuously effective as to all Registrable Securities for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any such cases ten Trading Days (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 clause (i) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clauses (iii) the date which such ten Trading Day period is exceeded, or for purposes of clause (v) the date on which such ten Trading Day period is exceeded being referred to as “Event Date”), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder; and (y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 2% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Registrable Securities then held by such Holder. 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 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The liquidated damages pursuant to the terms hereof shall apply on a pro-rata basis for any portion of a month prior to the cure of an Event.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the 30th day following the date such number is exceeded, an additional Registration Statement covering the resale of by the Holders of not less than all of such Registrable Securities and the Company shall use commercially reasonable best efforts to cause the registration statement such Registration Statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Companyreasonably practicable thereafter.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pro Pharmaceuticals Inc), Registration Rights Agreement (Pro Pharmaceuticals Inc)
Registration. (a) The Company shall, as soon as practicable after obtaining audited financial statements as are required to be filed with the SEC pursuant to Section 13(a) of the Exchange Act, but in any event not later than September 30, 2011 file to register its shares of Common Stock pursuant to the Exchange Act and file, after such registration becomes effective, all reports and other information necessary to satisfy the reporting requirements under the Exchange Act (the date on which the Company’s registration obligations stated in this Section 2, including its obligations, under the Exchange Act is thus effected is referred to herein as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration PeriodDate”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days As soon as practicable after the Company consummates a “Fundamental Transaction” (as defined in Registration Date or earlier, at the Certificate option of Designations for the Convertible Preferred)Company, the Company shall notify in writing all Holders of the intent of the Company to file a Registration Statement on Form S-3 (orrelating to all Registrable Securities, if to provide for the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale sale by the holders thereof of the Registrable SecuritiesSecurities from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration”).
(c) Notwithstanding anything herein, and the Company shall use reasonable best efforts to cause include in the registration statement to be declared effective by the closing of the Fundamental Transaction. The Shelf Registration Statement (i) all Registrable Securities then known to the Company and (ii) any amendment other Registrable Securities held by a Holder which any Holder notifies the Company should be included in such Registration Statement. Any Holder wishing not to have its Registrable Securities (or supplementany portion thereof) included in the Shelf Registration shall contain “Selling Stockholders” and “Plan provide a written notice thereof to the Company within ten (10) Business Days after the receipt of Distribution” sectionsthe Company’s notice pursuant to Section 2(b). In the event that a Holder subsequently notifies the Company that it wishes to include Registrable Securities in the Registration Statement, as specified by Investor. The the Company shall use its best efforts promptly amend the Registration Statement, if it has not been declared effective to include such Registrable Securities. If such Registrable Securities were held by a Registrable Holder at the filing of the Shelf Registration and should have been included pursuant to the terms hereof, the Company shall amend the Registration Statement declared effective to include such Registrable Securities (including, if necessary, by the SEC as soon as practicable, but in no event later than the closing filing a Registration Statement that will be part of the Fundamental Transaction same Prospectus pursuant to Rule 429 under the Securities Act).
(“Initial Effectiveness Date”d) Any Holder wishing not to have its Registrable Securities (or any portion thereof) included in the Shelf Registration shall provide a written notice thereof to the Company within ten (10) Business Days after the receipt of the Company’s notice pursuant to Section 2(b). By 9:30 a.m., New York time, on .
(e) Within fifteen (15) days after the Trading Day following the Initial Effectiveness Registration Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, and the Company shall furnish a draft of it use its commercially reasonable efforts to cause to be declared effective as promptly as practicable thereafter, the Investor for its review and comment. The Company shall include Investor’s reasonable comments in Shelf Registration with respect to all Registrable Securities other than those excluded by the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject Holders pursuant to Section 2(d).
(f) The Company shall use commercially reasonable efforts to keep the Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of three (3) years from the date on which the SEC declares such Registration Statement effective, or until such earlier date as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement. If any Registrable Securities remain issued and outstanding after three (3) years following the initial effective date of such Shelf Registration, upon the request of Holder(s) of at least ten percent (10%) of the Registrable Securities then outstanding, the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements prior to the expiration of such Shelf Registration, file a new Shelf Registration Statement and related Prospectus shall thereafter use its commercially reasonable efforts to cause to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement declared effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by practical, such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementnew Shelf Registration.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tronox Inc), Equity Commitment Agreement (Tronox Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2Company shall, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no any event not earlier than 20 days after but not later than 40 days after the closing issuance of the Fundamental Transaction Shares file a Registration Statement relating to all Registrable Securities, to provide for the sale by the Holders thereof of the Registrable Securities from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (a “Initial Effectiveness DateShelf Registration”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date.
(b) Notwithstanding anything herein, the Company shall file with include in the SEC, in accordance with Shelf Registration (i) all Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant then known to the Company and (ii) any other Registrable Securities held by a Holder which any Holder notifies the Company should be included in such Registration Statement. Before filing A Holder wishing not to have its Registrable Securities (or any portion thereof) included in the Shelf Registration may provide a written notice thereof to the Company. In the event that a Holder subsequently notifies the Company that it wishes to include Registrable Securities in the Registration Statement, the Company shall furnish promptly amend the Registration Statement, if it has not been declared effective to include such Registrable Securities. If such Registrable Securities were held by a draft Registrable Holder at the filing of it the Shelf Registration and should have been included pursuant to the Investor for its review and comment. The terms hereof, the Company shall include Investor’s reasonable comments in amend the Registration Statement given within 48 hours to include such Registrable Securities (including, if necessary, by filing a Registration Statement that will be part of the receipt thereof from same Prospectus pursuant to Rule 429 under the CompanySecurities Act).
(c) During The Company shall use its reasonable best efforts to cause to be declared effective as promptly as practicable thereafter the Shelf Registration Period, subject with respect to all Registrable Securities other than those excluded by the Holders pursuant to Section 2(d2(b).
(d) The Company shall use its reasonable best efforts to keep any Registration Statement filed pursuant to this Section 2 continuously effective and usable for the resale of the Registrable Securities covered thereby for a period of three (3) years from the date on which the SEC declares such Registration Statement effective, or until such earlier date as all of the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement. If any Registrable Securities remain issued and outstanding after thirty (30) full months following the initial effective date of such Shelf Registration, upon the request of Holder(s) of at least ten percent (10%) of the Registrable Securities then issued and outstanding, the Company shall, promptlywithin thirty (30) days of such request, (i) prepare file a new Shelf Registration and file with the SEC such amendments (including post-effective amendments) and supplements shall thereafter use its reasonable best efforts to the Registration Statement and related Prospectus cause to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement declared effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide practical, such new Shelf Registration.
(e) The Company shall be entitled to postpone the Investor true filing of any Registration Statement otherwise required to be prepared and complete copies filed by the Company pursuant to this Section 2, or suspend the use of all correspondence from and to any effective Registration Statement under this Section 2, for a reasonable period of time, if the SEC relating to the Registration Statement; and (iv) comply with the provisions Board of the Securities Act with respect to the disposition of all Registrable Securities Directors of the Company determines in the Board of Directors’ reasonable good faith that the registration and distribution of the Registrable Securities covered or to be covered by such Registration Statement until would (i) materially interfere with any pending material financing, acquisition, disposition, or corporate reorganization involving the Company or any of its subsidiaries, taken as a whole, (ii) require premature disclosure thereof, or (iii) be seriously detrimental to the Company and its stockholders, which such time as all determination shall be made by a majority of the members then serving on the Company’s Board of Directors, and promptly gives the Holders written notice of such Registrable Securities determination, containing a general statement of the reasons for such postponement and an approximation of the period of the anticipated delay; provided, however, that (i) the aggregate number of days included in all suspension period during any consecutive twelve (12) months shall have been disposed not exceed the aggregate of (x) forty-five (45) days minus (y) the number of days occurring during all Interruption Periods during such consecutive twelve (12) months and (ii) a period of at least ninety (90) days shall elapse between the termination of any delay period or Interruption Period and the commencement of the immediately succeeding delay period. The Company shall not be entitled to initiate or continue a delay under this clause (e) unless it shall (A) concurrently prohibit sales by all other security holders under registration statements covering securities held by such other security holders and (B) in accordance with the intended methods of disposition by the seller or sellers thereof as set forth Company’s policies from time to time in effect, forbid purchases and sales in the Registration Statement. In the case of amendments open market by directors and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason executive officers of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Merger Agreement (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates first files a preliminary or definitive proxy statement (including in any joint proxy statement/prospectus) with respect to a, “Fundamental Transaction,” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Black Titan Corp), Registration Rights Agreement (Titan Pharmaceuticals Inc)
Registration. (a) The Company’s registration obligations stated If, at any time after the Closing Date, Veridium proposes to register any of its securities under the Securities Act, it will include in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, the shares of Common Stock (the "Remainder Shares") (i) issuable to the Lenders under Section 3 of this Agreement, (ii) the Collateral and the shares of Common Stock issuable under the Warrants previously issued to the Lenders, FCIM Corp. and Vestcom as contemplated by the Registration Rights Agreement, (iii) the shares underlying the warrants issuable under Sections 8 and 17 and (iv) any other shares of Common Stock issuable under this Agreement other than the Debenture Shares (as hereinafter defined). Veridium shall begin on the date hereof and continue until all register the Registrable Securities have been sold or may (as hereinafter defined) with the shares to be sold without any restrictions pursuant to Rule 144, as determined registered by Veridium and purchased 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 Laurus Fund (the “Registration Period”"Laurus Shares"). No The Registration Statement shall register also include the shares issuable upon conversion of any security other than unpaid principal and interest under the Debentures (the "Debenture Shares") in the event of default under the Debenture (the Remainder Shares and the Debenture Shares shall be referred to collectively as the "Registrable Securities.
(b) Within 10 days after "). So long as Veridium is not in default under the Company consummates a “Fundamental Transaction” Transaction Documents, the Required Filing Date (as defined in the Certificate of Designations for Registration Rights Agreement) and the Convertible Preferred), Required Effective Date (as defined in the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1Rights Agreement) with respect to Investor’s resale of the Registrable Securities, Shares shall be 45 and 145 days after the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Closing Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statementrespectively. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary Veridium covenants to keep such the Registration Statement effective at all times during the Registration Period, including with respect to changes in period continuing until the “Selling Stockholders” and “Plan earlier of Distribution” sections, as specified by (i) the Investor; date when the Lenders may sell all Registrable Securities under Rule 144 without volume or other restrictions or limits or (ii) cause the related Prospectus to be amended or supplemented by date the Lenders no longer own any required Prospectus supplement (subject to of the terms of Registrable Securities. Except as specified in this Agreement, the Registration Rights Agreements shall remain in full force and effect. The Lenders agree to waive the restriction under Section 4(h) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iiientitled "Restrictions on Filing Registration Statements") respond to any comments received from of the SEC Purchase Agreements on Veridium's filing of registration statements with respect to the Laurus Shares so long as Veridium registers the Registrable Securities in the first Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act filed with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementLaurus shares.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Investment Agreement (Veridium Corp), Investment Agreement (Veridium Corp)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. 2.1 The Company shall use its best commercially reasonable efforts to file with the SEC a Registration Statement or Registration Statements (as is necessary) on Form S-1 (or, if such form is unavailable for such a registration, on such other form as is available for such registration) on a date no later than sixty (60) days following the date hereof, which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon stock splits, stock dividends or similar transactions. The Company shall initially register for resale all of the Registrable Securities which would be issuable on the date preceding the filing of the Registration Statement based on the closing bid price of the Company’s Common Stock on such date as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the 1933 Act at then prevailing market prices (and not fixed prices).
2.2 The Company shall use all commercially reasonable efforts to have the Registration Statement Statement(s) declared effective by the SEC as soon as practicablewithin thirty (30) calendar days, but in no event later more than ninety (90) calendar days after the closing of Company has filed the Fundamental Transaction Registration Statement (“Initial Effectiveness DateRegistration Dates”). By 9:30 a.m., New York time, on If the Trading Day following Company fails to meet these Registration Dates the Initial Effectiveness DateCompany will issue to Investor one percent of the value of the Commitment facility in either cash or stock using the closing price one day before the failure to meet the Registration Dates.
2.3 The Company agrees not to include any other securities in the Registration Statement covering the Registrable Securities without Investor’s prior written consent which Investor may withhold in its sole discretion. Furthermore, the Company shall agrees that it will not file any other registration statement for other securities, until thirty calendar days after the Registration Statement for the Registrable Securities is declared effective by the SEC.
2.4 Notwithstanding the registration obligations set forth in this Section 2.1, if the staff of the SEC (the “Staff”) or the SEC informs the Company that all of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new registration statement (the “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-1 to register for resale the Registrable Securities as a secondary offering. If 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 commercially reasonable efforts to file with the SEC, in accordance with as promptly as allowed by the Staff or SEC, one or more registration statements on Form S-1 to register for resale those Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing that were not registered for resale on the Registration Statement, as amended, or the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the New Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Periodeach, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the an “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Additional Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Grom Social Enterprises, Inc.), Stock Purchase Agreement (Grom Social Enterprises, Inc.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as reasonably practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vsee Health, Inc.), Registration Rights Agreement (Digital Health Acquisition Corp.)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, 6.1 In the event the Company elects to file a registration statement (the "Registration Statement") with the Securities and obtain and maintain effectiveness Exchange Commission (the "SEC") (other than a registration statement on Form S-8 or Form S-4), the Company may, in its absolute discretion, register all or any of the Warrant Shares (the "Registrable Securities") in the Registration Statement.
6.2 If the Company elects to register the Registrable Securities, the Company will furnish the Finder with written notice as soon as practicable but in no event less than ten (10) business days prior to the proposed filing date of the Registration StatementStatement (the "Registration Notice"). The Finder will exercise the right provided for herein by providing written notice to the Company within five (5) business days of receipt of the Registration Notice (the "Rights Notice"). Upon receipt of the Rights Notice, shall begin on the date hereof Company may include and continue until all register the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144in the Registration Statement.
6.3 To register the Registrable Securities, as determined by the counsel Finder must furnish to the Company pursuant such information regarding itself, the Registrable Securities to a written opinion letter be sold by the Finder, and the intended method of disposition of such securities as shall be required to such effect, addressed and reasonably acceptable to effect the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than registration of the Registrable Securities.
(b) Within 10 days after 6.4 If the Company consummates receives a “Fundamental Transaction” (as defined comment from the SEC which effectively results in the Certificate Company having to reduce the number of Designations for the Convertible Preferred)Registrable Shares included on such Registration Statement, the Company shall file a Registration Statement on Form S-3 (or, if Finder acknowledges that the Company is ineligible may, in its sole discretion, reduce the number of Registrable Shares to file on Form S-3, then on Form S-1) with respect to Investor’s resale of be included in such Registration Statement.
6.5 In the event the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but Shares are included in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, then:
(a) To the extent permitted by law, the Company will indemnify, defend, and hold harmless the Finder, the members, managers, officers, directors and agents of the Finder against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the 1933 Act or any similar federal statute, and the rules and regulations of the SEC thereunder, as shall furnish be in effect at the time, the Securities Exchange Act of 1934 as amended (the "1934 Act"), or any similar federal statute, and the rules and regulations of the SEC thereunder, as shall be in effect at the time, or other federal, provincial and state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions, or violations (collectively, a draft "Violation"): (i) any untrue statement or alleged untrue statement of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments a material fact contained in the Registration Statement given within 48 hours Statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the receipt thereof from 1933 Act, the 1934 Act, any state or provincial securities law or any rule or regulation promulgated under the 1933 Act, the 1934 Act, or any state or provincial securities law; provided, however, that the indemnity agreement contained in this section shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Finder.
(b) To the extent permitted by law, the Finder will indemnify, defend and hold harmless the Company, its officers, directors and agents against any losses, claims, damages or liabilities (joint or several) to which they may become subject under the 1933 Act, the 1934 Act, or other federal, provincial and state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any Violation that occurs as a result of the Company’s reliance upon information furnished by the Finder for use in connection with a registration effected pursuant to this Agreement; provided, however, that the indemnity agreement contained in this subsection (b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Finder, which consent shall not be unreasonably withheld, nor shall the Finder be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by the Company.
(c) During Promptly after receipt by a party entitled to be indemnified under this section (the Registration Period, subject to Section 2(d"Indemnitee") of notice of the commencement of any action (including any governmental action), the Company shallIndemnitee will, promptlyif a claim in respect thereof is to be made against the party obligated to indemnify the Indemnitee under this section (the "Indemnitor"), (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements deliver to the Registration Statement Indemnitor a written notice of the commencement thereof and related Prospectus the Indemnitor shall have the right to be filed pursuant to Rule 424participate in, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating extent the Indemnitor so desires, to assume the defense thereof with counsel mutually satisfactory to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”)parties; provided, however, that the Company Indemnitee shall promptly (x) notify have the Investor in writing right to retain one separate counsel, with the fees and expenses to be paid by the Indemnitor, if representation of the Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between the Indemnitee and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement (and of any such action, if prejudicial to the termination) Indemnitor's ability to defend such action, shall relieve the Indemnitor of an Allowed Delayany liability to the Indemnitee under this section, but shall not (without the prior omission so to deliver written consent of the Investor) disclose notice to the Investor Indemnitor will not relieve it of any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) liability that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal it may have to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Indemnitee otherwise than under this section.
Appears in 2 contracts
Sources: Finder's Fee Agreement (Arkanova Energy Corp), Securities Offering Agreement (Arkanova Energy Corp)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities, (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no Registerable Securities and (iii) the date on which all of the Registrable Securities have been sold or may be sold without any restrictions restriction pursuant to Rule 144, 144 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 (the “Registration Period”). No Registration Statement shall register any security other than The parties to this Agreement agree and confirm that as of the date hereof a portion of the Registrable SecuritiesSecurities has already been registered by the Company pursuant to the Effective Registration Statement.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Business Day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (La Rosa Holdings Corp.), Registration Rights Agreement (La Rosa Holdings Corp.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (orF-1 or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC rules, if regulations and interpretations so as to permit the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zapp Electric Vehicles Group LTD), Registration Rights Agreement (Zapp Electric Vehicles Group LTD)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a "shelf" Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than one hundred and twenty (120) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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, shall begin on Statement will not be "reviewed," or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s 's transfer agent to such effect (the “Registration "Effectiveness Period”"). No Upon the initial filing thereof, the Registration Statement shall register any security other than cover at least 100% of the shares of Common Stock for issuance upon the conversion of the Preferred Stock and 100% of the shares of Common Stock for issuance upon the exercise of the Warrants. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Investor Rights Agreement (Genetronics Biomedical Corp), Investor Rights Agreement (Transmeridian Exploration Inc)
Registration. The Company agrees that it will use its commercially reasonable efforts to file with the Securities and Exchange Commission (athe “Commission”) The (at the Company’s sole cost and expense), within thirty (30) calendar days after the Business Combination Closing (the “Filing Date”), a registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness statement (the “Forward Registration Statement”) registering the resale of the Forward Purchase Securities (the “Registrable Securities”), and the Company shall use its commercially reasonable efforts to have the Forward Registration StatementStatement declared effective as soon as practicable after the filing thereof (the “Effectiveness Deadline”); provided, shall begin on however, that the date hereof and continue until all Company’s obligations to include the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined by in the counsel Forward Registration Statement are contingent upon the Subscriber furnishing in writing to the Company pursuant to a written opinion letter to such effectinformation regarding the Subscriber, addressed the Forward Purchase Securities of the Company held by the Subscriber and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than intended method of disposition of the Registrable Securities.
(b) Within 10 days after Securities as shall be reasonably requested by the Company consummates a “Fundamental Transaction” (as defined in to effect the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale registration of the Registrable Securities, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling shareholder in similar situations; provided further, that the Effectiveness Deadline shall be extended to ninety (90) calendar days after the Filing Date if the Forward Registration Statement is reviewed by, and comments thereto are provided from, the Commission (provided, that if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business). Notwithstanding the foregoing, if the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Forward Registration Statement will not be “reviewed” or subject to further review, the Company shall use its commercially reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Forward Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing within ten (10) Business Days of the Fundamental Transaction (“Initial Effectiveness Date”)receipt of such notice. By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant Notwithstanding anything to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptlycontrary contained herein, (i) prepare no registration shall be effected or permitted and file with the SEC such amendments (including post-effective amendments) and supplements to the no Forward Registration Statement and related Prospectus to be filed pursuant to Rule 424shall become effective, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified any Registrable Securities held by the Investor; Subscriber or any person or entity to whom the Subscriber is permitted to Transfer (iias defined below) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject such Registrable Securities prior to the terms expiration of this Agreementthe Forward Purchase Lock-up Period (as defined below) and(a “Permitted Transferee”), as so supplemented until after the expiration of the Forward Purchase Lock-up Period. The Company may delay or amendedpostpone filing of such Forward Registration Statement, and from time to be filed pursuant time require the Subscriber not to Rule 424; (iii) respond to any comments received from sell under the SEC with respect to the Forward Registration Statement or any suspend the use or effectiveness thereof if it determines that in order for the Forward Registration Statement to not contain a material misstatement or omission, an amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities would be needed, or if such filing or use could materially affect a bona fide business or financing transaction of the Company covered by such Registration Statement until such time as all or would require premature disclosure of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of information that could materially adversely affect the Company’s filing a report on Form 10-K; provided, Form 10-Qthat, or Form 8-K or any analogous report under the Securities Exchange Act, (w) the Company shall incorporate such report by reference into the Registration Statement, if applicable, not so delay filing or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may so suspend the use of any Prospectus included in the Forward Registration Statement if for a period of more than ninety (90) consecutive days or more than a total of one hundred twenty (120) calendar days, in each case in any three hundred sixty (360) day period and (x) the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary shall use commercially reasonable efforts to make the statements therein, in Forward Registration Statement available for the case sale of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective Forward Purchase Securities by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, undersigned as liquidated damages, and not soon as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30practicable thereafter.
Appears in 2 contracts
Sources: Forward Purchase Agreement (MELI Kaszek Pioneer Corp), Forward Purchase Agreement (MELI Kaszek Pioneer Corp)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than ninety (90) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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, shall begin on Statement will not be “reviewed,” or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) with respect to such Holder, such time as all Registrable Securities held by such Holder may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s transfer agent to such effect (the “Registration Effectiveness Period”). No For purposes of the obligations of the Company under this Agreement, no Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a be considered “Fundamental Transactioneffective” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the any Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Securities unless such Registration Statement (and any amendment or supplement) shall contain lists the Holders of such Registrable Securities as “Selling Stockholders” and includes such other information as is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any such Holder is not included as a “Plan of DistributionSelling Stockholder” sections, as specified by Investorpursuant to Section 3(m). The Company shall use its best efforts to have the Such Registration Statement declared effective by also shall cover, to the SEC as soon as practicable, but in no event later than extent allowable under the closing of Securities Act and the Fundamental Transaction Rules promulgated thereunder (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with including Securities Act Rule 424 (“Rule 424”416), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statementsuch indeterminate number of additional shares of Common Stock resulting from stock splits, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended stock dividends or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC similar transactions with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementSecurities.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Investor Rights Agreement (Access Pharmaceuticals Inc), Investor Rights Agreement (Axs One Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall prepare and file with the Commission within 60 days following the Closing and use all reasonable efforts to have declared effective as soon as practicable thereafter, a Registration Statement registration statement on Form S-3 (or, if the Company is ineligible not then eligible to file on use Form S-3, then on Form S-1another appropriate form) providing for the resale by the Holders of all of the Registrable Securities (the "Shelf Registration Statement"). The Shelf Registration Statement may include securities other than those held by Holders. Cellegy shall use its best efforts to keep the Shelf Registration Statement continuously effective, pursuant to the Act and the Rules and Regulations promulgated thereunder, until (i) the date when such Registrable Securities cease to meet the definition of Registrable Securities pursuant to Section 7.1, or (ii) the Company's obligations hereunder terminate; provided, however:
(i) that the Holders will sell the Registrable Securities pursuant to such registration only during a "Permitted Window" (as defined below);
(ii) if the Company furnishes to the Holders a certificate signed by the President or Chief Executive Officer of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for sales to be made from such Shelf Registration Statement at such time (or, in the case a "Notice of Resale" (as defined below) has been given, that would be seriously detrimental to the Company and its shareholders for the Permitted Window to commence at such time) due to (A) the existence of a material development or potential material development involving the Company which the Company would be obligated to disclose in the Prospectus contained in the Shelf Registration Statement, which disclosure would in the good faith judgment of the Board of Directors of the Company be premature or otherwise inadvisable at such time or (B) concurrent public filings with the Commission of other registration statements, then the Company will have the right to defer the filing (the "Deferral Right") of the Shelf Registration Statement (or the commencement of the Permitted Window, as the case may be) for a period of not more than 60 days after the date it would otherwise be required to file the Shelf Registration Statement pursuant to this Section 7.2(a) (or after receipt of the Notice of Resale, as the case may be); provided, however, that the Company will not utilize the Deferral Right more than once in any twelve month period; and provided further, however, that the Company may defer the filing of the Shelf Registration Statement (or the commencement of the Permitted Window as the case may be) for up to 180 days if so requested by an underwriter in connection with an underwritten offering of the Company's securities so long as any selling shareholders in such underwritten offering are subject to a lock-up agreement of the same duration (other than with respect to Investor’s resale the Company securities to be sold by such selling shareholders in such underwritten offering); and
(iii) that the Company will not be required to effect any such registration, qualification or compliance under applicable state blue sky laws in any particular jurisdiction in which the Company would thereby be required to qualify to do business or to execute a general consent to service of process. In the Registrable Securitiesevent that the Shelf Registration Statement shall cease to be effective, and the Company shall use reasonable best efforts to cause the promptly prepare and file a new registration statement to be declared effective by covering the closing of the Fundamental Transaction. The Registration Statement (Registrable Securities and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement such registration statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)possible. By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company Any such registration statement shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the considered a "Shelf Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company" hereunder.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Four Partners), Common Stock Purchase Agreement (Cellegy Pharmaceuticals Inc)
Registration. (a) The Company shall prepare and file with the SEC, no later than one hundred fifty (150) days after the date hereof a Registration Statement on Form S-1 (or such other appropriate form) covering no less than the number of shares of Common Stock constituting one-third of the Company’s public float. Such Registration Statement shall state that, in accordance with the Securities Act, it also covers such indeterminate number of additional shares of Common Stock as may become issuable to prevent dilution resulting from stock splits, or stock dividends. If at any time the number of shares issued or issuable pursuant to the Purchase Agreement exceeds the aggregate number of shares of Common Stock then registered, the Company shall, within ten (10) business days after receipt of written notice from the Investor, file with the SEC an additional Registration Statement to register the number of additional shares of Common Stock that exceed the aggregate number of shares of Common Stock already registered; provided, however that the Company shall not be obligated to register any additional securities if in the opinion of counsel for the Company such registration obligations stated will likely be characterized as an offering of securities that does not permit such Registration Statement to become effective and be used for resales by the Investor on a delayed or continuous basis under Rule 415 . Notwithstanding the foregoing, if the Company is advised by its counsel or the staff of the SEC (the “Staff”) that the Staff seeks to or likely will characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities that does not permit such Registration Statement to become effective and be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing market prices (and not fixed prices)(or as otherwise may be acceptable to the Investor), because of the number of shares sought to be included in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on then the date hereof and continue until all Company may reduce (an “SEC Share Reduction”) the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined number of shares covered by the counsel such Registration Statement to the maximum number which would still, upon the advice of counsel, enable the Staff and the SEC to allow the Company pursuant to a written opinion letter conduct such offering in accordance with the provisions of Rule 415 and to permit such effectRegistration Statement to become effective and be used as aforesaid. In the event of an SEC Share Reduction, addressed (i) the inclusion of at least twenty five percent (25%) of the aggregate of the Commitment Shares and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Fee Shares in such initial Registration Statement shall register take precedence over any security other than the Registrable SecuritiesPut Shares and shall not be cut back or removed from such Registration Statement until any Put Shares are cut back and removed from such Registration Statement.
(b) Within 10 days after Notwithstanding the foregoing, the Company consummates a “Fundamental Transaction” (as defined in may delay the Certificate initial registration of Designations Registrable Securities pursuant to Section 2(a) hereof for the Convertible Preferredtime periods described in this Section 2(b) hereof to the extent reasonably necessary due to the occurrence of any of the following (each an “Allowed Extension” ):
(i) The Company shall have previously entered into an agreement or letter of intent contemplating an underwritten public offering on a firm commitment basis of Common Stock or securities convertible into or exchangeable for Common Stock and the managing underwriter of such proposed public offering advises the Company in writing that in its opinion such proposed underwritten offering would be materially and adversely affected by a concurrent registered offering of Registrable Securities (such opinion to state the reasons therefore);
(ii) During the two (2) month period immediately preceding such request, the Company shall file have entered into an agreement or letter of intent, which has not expired or otherwise terminated, contemplating a Registration Statement on Form S-3 (or, if material business acquisition by the Company or its subsidiaries whether by way of merger, consolidation, acquisition of assets, acquisition of securities or otherwise;
(iii) The Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale in possession of the Registrable Securities, and material nonpublic information that the Company shall use reasonable best efforts would be required to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments disclose in the Registration Statement given within 48 hours of and that is not, but for the receipt thereof from the Company.
(c) During the Registration Periodregistration, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement otherwise required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason disclosed at the time of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Companyregistration, the disclosure of which, in its good faith judgment, would have a material adverse effect on the business, operations, prospects or competitive position of the Company;
(iv) The Company shall receive the written opinion of the managing underwriter of the underwritten public offering pursuant to which at Common Stock has been registered within the three (3) month period prior to the receipt of a registration request that the registration of additional Common Stock will materially and adversely affect the market for the Common Stock (such opinion to state the reasons therefore); or
(v) At the time of receipt of a registration request, the Company is notengaged, or its board of directors has adopted by resolution a plan to engage, in any program for the purchase of Common Stock or securities convertible into or exchangeable for Common Stock and, in the good faith opinion of counsel, reasonably satisfactory to the CompanyInvestor, in the best interests distribution of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required Common Stock to be stated therein or necessary registered would cause such purchase to make be in violation of Regulation M promulgated under the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableExchange Act.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Internal Fixation Systems, Inc.), Registration Rights Agreement (ProText Mobility, Inc.)
Registration. 2.1 The Company shall, within ten (a10) The Company’s registration obligations stated in calendar days upon the date of execution of this Section 2Agreement, including use its obligations, as set forth herein, commercially reasonable efforts to file and obtain and maintain effectiveness of with the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 S-1 (or, if such form is unavailable for such a registration, on such other form as is available for such registration), covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of all of the Registrable Securities, and which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The 1933 Act, such Registration Statement (and any amendment also covers such indeterminate number of additional shares of Common Stock as may become issuable upon stock splits, stock dividends or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorsimilar transactions. The Company shall initially register for resale all of the Registrable Securities which would be issuable on the date preceding the filing of the Registration Statement based on the closing bid price of the Company’s Common Stock on such date as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the 1933 Act at then prevailing market prices (and not fixed prices).
2.2 The Company shall use its best all commercially reasonable efforts to have the Registration Statement Statement(s) declared effective by the SEC as soon as practicablewithin forty five (45) calendar days, but in no event later than after the closing of Company has filed the Fundamental Transaction Registration Statement (“Initial Effectiveness DateRegistration Dates”). By 9:30 a.m., New York time, on If the Trading Day following Company fails to file the Initial Effectiveness DateRegistration Statement within 30 days, the Company shall will issue to Investor one percent of the value of the Commitment facility in either cash or stock using the closing price one day before the failure to meet the Registration Dates
2.3 The Company agrees that it will not file any other registration statement for other securities, until thirty calendar days after the Registration Statement for the Registrable Securities is declared effective by the SEC.
2.4 Notwithstanding the registration obligations set forth in this Section 2.1, if the staff of the SEC (the “Staff”) or the SEC informs the Company that all of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new registration statement (the “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-1 to register for resale the Registrable Securities as a secondary offering. If 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 commercially reasonable efforts to file with the SEC, in accordance with as promptly as allowed by the Staff or SEC, one or more registration statements on Form S-1 to register for resale those Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing that were not registered for resale on the Registration Statement, as amended, or the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the New Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Periodeach, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the an “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Additional Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lottery.com Inc.), Stock Purchase Agreement (Lottery.com Inc.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 hours of the receipt thereof from the Company.
. If the Merger Time (cas defined in the Purchase Agreement) During does not occur on prior to the Registration Period, subject to Section 2(d)date that is 120 days from the date hereof, the Company shall, promptly, (i) prepare and may file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan a withdrawal of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Standby Equity Purchase Agreement (AGBA Group Holding Ltd.), Registration Rights Agreement (AGBA Group Holding Ltd.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (orF-1 or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC rules, if regulations and interpretations so as to permit the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling StockholdersShareholder” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Powell Max LTD), Registration Rights Agreement (Powell Max LTD)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities, (ii) the date of termination of the Purchase Agreement (in accordance with Article IX thereof) if, as of such termination date, the Investor holds no Registerable Securities and (iii) the date on which all of the Registrable Securities have been sold or may be sold without any restrictions restriction pursuant to Rule 144, 144 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Business Day following the Initial Effectiveness Datedate of effectiveness of the Registration Statement, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fold Holdings, Inc.), Registration Rights Agreement (Fold Holdings, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 30 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate date of Designations for the Convertible Preferred)this Agreement, the Company Parent shall use its reasonable best efforts to file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale for public sale of all of the Registrable Securities, and Stock Consideration on a delayed or continuous basis pursuant to Rule 415 (or any successor provision) of the Company shall use reasonable best efforts Securities Act registering the resale from time to cause the registration statement to be declared effective time by the closing of Major Stockholders (the Fundamental Transaction. The "Shelf Registration Statement (Statement") and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its reasonable best efforts to have the Shelf Registration Statement declared effective by the SEC as soon as practicable, but in no event later on or prior to the Closing Date. No securities other than the closing Registrable Shares shall be included in any Shelf Registration Statement with respect thereto without the written consent of the Fundamental Transaction (“Initial Effectiveness Date”)Major Stockholders. By 9:30 a.m., New York time, on Parent shall use its reasonable best efforts to keep the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Shelf Registration Statement given within 48 hours of the receipt thereof from the Company.
continuously effective (c) During the Registration Periodincluding, subject to Section 2(d)if necessary, the Company shall, promptly, (i) prepare and file by filing with the SEC such amendments (including a post-effective amendments) and supplements amendment or supplement to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K related prospectus or any analogous report under the Securities Exchange Act, the Company shall incorporate such report document incorporated therein by reference into or by filing any other required document or otherwise supplementing or amending the Shelf Registration Statement, if applicablerequired by the rules, regulations or shall file instructions applicable to the registration form under the Securities Act used by Parent for such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Shelf Registration Statement, upon any state securities or "blue sky" laws or any other rules and regulations thereunder) until the advice earlier of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay one year after the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company Closing Date or (ii) amend or supplement until all Registrable Shares covered by the Shelf Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required cease to be stated therein or necessary Registrable Shares (the "Effectiveness Period"). The offering and sale of Registrable Shares shall be pursuant to make the statements therein, in the case a plan of distribution selected by each of the Prospectus Major Stockholders in light their sole discretion and may include up to one (1) underwritten offering and sale of Registrable Shares during the circumstances under which they were made, not misleading (an “Allowed Delay”)Effectiveness Period; provided, however, that Parent shall have the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delayright to select any such underwriter, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be (i) an underwriter of national reputation and (ii) reasonably satisfactory to the number of days in that Delay Period, and the denominator of which is 30Major Stockholders.
Appears in 2 contracts
Sources: Merger Agreement (Tektronix Inc), Registration Rights Agreement (Tektronix Inc)
Registration. (a) 2.1 The Company’s registration obligations stated in this Section 2Company will file, including its obligations, as set forth herein, to file and obtain and maintain effectiveness within 70 days of the Registration Statementdate of this Agreement (the "Filing Date"), shall begin a registration statement on Form S-1 (or such other form as is appropriate) registering the date hereof offer and continue until all sale of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined by the counsel holders thereof and containing the "PLAN OF DISTRIBUTION" attached hereto as SCHEDULE B. Except for those holders of the Company's securities with registration rights listed on SCHEDULE 2.1(W) to the Company pursuant to Purchase Agreement, such registration statement shall not include any shares of Common Stock or other securities for the account of any other holder without the prior written consent of the holders of a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than majority of the Registrable Securities.
(b) Within 10 days after 2.2 Upon the Company consummates a “Fundamental Transaction” written demand of any Investor and upon any change in the Warrant Price (as defined in the Certificate Warrants) such that additional shares of Designations Common Stock become issuable upon the exercise of the Warrants, the Company shall prepare and file with the SEC one or more registration statements on Form S-1 or amend the registration statement filed pursuant to Section 2.1 above, if such registration statement has not previously been declared effective (or, if Form S-1 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of such additional shares of Common Stock (the Convertible Preferred"ADDITIONAL SHARES"), subject to the Required Investors' consent) covering the resale of the Additional Shares, but only to the extent the Additional Shares are not at the time covered by an effective registration statement. Such registration statement also shall cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Additional Shares.
2.3 Promptly following the date (the "QUALIFICATION DATE") upon which the Company becomes eligible to use a registration statement on Form S-3 to register the Registrable Securities or Additional Shares, as applicable, for resale, but in no event more than thirty (30) days after the Qualification Date (the "QUALIFICATION DEADLINE"), the Company shall file a Registration Statement registration statement on Form S-3 covering the Registrable Securities or Additional Shares, as applicable (or, if the Company is ineligible to file or a post-effective amendment on Form S-3, then S-3 to any registration statement on Form S-1) with respect to Investor’s resale of the Registrable Securities, (a "SHELF REGISTRATION STATEMENT") and the Company shall use commercially reasonable best efforts to cause such Shelf Registration Statement to be declared effective as promptly as practicable thereafter.
2.4 If (a) the registration statement required by Section 2.1 is not filed by the Filing Date or is not declared effective by the Commission within 120 days of the date of this Agreement (unless such registration statement is subject to a partial or full review by the Commission, in which case such date by which the registration statement must be declared effective by the closing Commission shall be extended to the earlier of (i) 60 days from the date of the Fundamental Transaction. The Registration Statement first comment letter received by the Company from the Commission or (and ii) 150 days from the date of this Agreement), (b) a registration statement required by Section 2.2 is not filed within 20 days of the date of request by any amendment Investor or supplement) shall contain “Selling Stockholders” and “Plan such registration statement is not declared effective within 120 days of Distribution” sectionsthe date of such request (unless such registration statement is subject to a partial or full review by the Commission, as specified in which case such date by Investor. The Company shall use its best efforts to have which the Registration Statement registration statement must be declared effective by the SEC as soon as practicable, but in no event later than Commission shall be extended to the closing earlier of (i) 60 days from the date of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, first comment letter received by the Company shall file with from the SEC, in accordance with Securities Act Rule 424 Commission or (“Rule 424”ii) 150 days from the date of such request), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During a Shelf Registration covering the Registration Period, Registrable Securities is not filed by the Commission on or prior to the Qualification Deadline or declared effective within 120 days of the Qualification Deadline (unless such registration statement is subject to Section 2(d)a partial or full review by the Commission, in which case such date by which the Company shall, promptly, registration statement must be declared effective by the Commission shall be extended to the earlier of (i) prepare and file with 60 days from the SEC such amendments (including post-effective amendments) and supplements to date of the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified first comment letter received by the Investor; Company from the Commission or (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received 150 days from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and Qualification Deadline), (ivd) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be a registration statement filed pursuant to this Agreement is not declared effective by the Commission within five days of the date the Company receives notice from the Commission that such registration statement will not be reviewed or is no longer subject to further review and comments, or (including e) after a registration statement filed pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement Agreement has not been declared effective by the Initial Effectiveness DateCommission, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus sales cannot be used or has not been filed made pursuant to Rule 424such registration statement for any reason (including without limitation by reason of a stop order, or the Company's failure to update the registration statement), but excluding the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to Section 2.5 below (any such failure or breach being referred to as an "Event" and the date on which such Event occurs being referred to as "Event Date"), then, on the Event Date and on the date of every monthly anniversary thereof until the Event is cured, the Company shall, on the first day of shall pay to each calendar month following the month Investor an amount in which a Delay Period occurs, pay Investorcash, as liquidated damages, damages and not as a penalty, an amount equal to 1.5% of the product obtained amount paid by multiplying $20,000 such Investor pursuant to the Purchase Agreement for the Registrable Securities purchased by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.such
Appears in 2 contracts
Sources: Registration Rights Agreement (Zhongpin Inc.), Registration Rights Agreement (Strong Technical Inc)
Registration. (ai) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, After the earlier to file and obtain and maintain effectiveness occur of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined by the counsel to the Company pursuant to (1) a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” Listing Event (as defined in the Certificate of Designations Designation), and (2) the date that is 12 months after the Original Issue Date, Buyers holding Shares convertible into shares of Common Stock with a market value that is equal to at least $10,000,000 shall have the right to require the Company at any time, and from time to time, to file a registration statement on Form S-1 (or if eligible to use Form S-3, a registration statement on Form S-3) with the SEC covering the resale of the Underlying Shares (each such registration statement and each registration statement filed pursuant to Section 4(m)(ii), a “Resale Registration Statement”).
(ii) The Company also agrees that to the extent it files any registration statement with the SEC, other than a registration statement on Form ▇-▇, ▇▇▇▇ ▇-▇ or Form S-3, it will prior to filing such registration statement, give the Buyers reasonable written notice in order to permit the Buyers to include in such registration statement, the resale of the Underlying Shares; provided, however, that if, solely in connection with any primary underwritten public offering for the Convertible Preferredaccount of the Company, the managing underwriter(s) thereof shall, in its reasonable discretion, impose a limitation on the number of Underlying Shares which may be included in such registration statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to allocate for inclusion in such registration statement the Underlying Shares of each participating holder of Underlying Shares in direct proportion (as nearly as practicable) to the number of Underlying Shares requested to be included by such holder; provided, however, that the Buyers shall not be disproportionately negatively affected as compared to other holders of Company securities to be registered.
(iii) The Company will promptly file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared become promptly effective by the closing of the Fundamental Transaction. The such Resale Registration Statement (and as well as any amendment filings required under any applicable state securities laws or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorregulations. The Company shall use its best efforts to have the keep such Resale Registration Statement declared effective until the earlier of (1) such time as all of the Underlying Shares registered for resale under such Resale Registration Statement have been sold pursuant to such Resale Registration Statement or otherwise, or (2) such time as the Underlying Shares registered for resale under such Resale Registration Statement may be sold under Rule 144 without restriction or limitation and without the requirement to be in compliance with Rule 144(c)(1). The Buyers’ right to demand registration of the Underlying Shares shall not terminate until such time as all the Underlying Shares have been registered for resale with the SEC and the Buyers have sold or otherwise transferred to Persons not affiliated with the Buyers all of such Underlying Shares. All costs related to the preparation, filing and effectiveness of such registrations, including accounting and legal fees and expenses (including reasonable fees and expenses of counsel for the Buyers) shall be borne by the SEC as soon as practicableCompany. The Company will enter into an agreement with the Buyers including customary terms and conditions for any such registration, but in no event later than including customary indemnification provisions.
(iv) Notwithstanding the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Dateforegoing obligations, the Company shall file with may, upon written notice to the SECBuyers, for a reasonable period of time, not to exceed 45 days in accordance with Securities Act Rule 424 the case of clauses (1) and (2) below, or 30 days in the case of clause (3) below (each, a “Rule 424Suspension Period”), delay the final Prospectus filing of a Resale Registration Statement or a request for acceleration of the effective date, or suspend the effectiveness of any Resale Registration Statement, in the event that (1) the Company is engaged in any activity or transaction or preparations or negotiations for any activity or transaction that the Company desires to be used keep confidential for business reasons, if the Company’s board of directors determines in its reasonable good faith judgement that the public disclosure requirements imposed on the Company under the Securities Act in connection with sales pursuant the Resale Registration Statement would require at that time disclosure of such activity, transaction, preparations or negotiations and such disclosure could result in material harm to the Registration Statement. Before filing Company or its business transactions or activities, (2) the Company does not yet have appropriate financial statements of any acquired or to be acquired entities necessary for filing, or (3) any other event occurs that makes any statement of a material fact made in such Resale Registration Statement, including any document incorporated by reference therein, untrue or that requires the Company shall furnish a draft making of it any additions or changes in the Resale Registration Statement in order to make the Investor for its review and commentstatements therein not misleading. The Company shall include Investor’s reasonable comments may not invoke its right to suspend or delay a registration statement pursuant to this Section 4(m)(iv) more than twice in any twelve month period. If the Company suspends the effectiveness of a Resale Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject pursuant to this Section 2(d4(m)(iv), the Company shall, promptlyas promptly as reasonably practicable following the termination of the circumstance which entitled the Company to do so, (i) prepare and file with the SEC take such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, actions as may be necessary to keep reinstate the effectiveness of such Resale Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject give written notice to the terms of this Agreement) and, as so supplemented or amended, applicable Buyers authorizing the applicable Buyers to be filed resume offerings and sales pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Resale Registration Statement.
(dv) Beginning 60 days after It shall be a condition precedent to the obligations of the Company to file or effect any Resale Registration Statement pursuant to this Section 4(m) that each Buyer who desires to include Underlying Shares in such Resale Registration Statement shall furnish to the Company such information regarding itself, the Company securities held by it and the intended method of disposition of the Underlying Shares held by it as shall be reasonably required to effect and maintain the effectiveness of the registration of such Resale Registration StatementStatement and shall execute such documents in connection with such registration as the Company may reasonably request.
(vi) Notwithstanding anything contained herein to the contrary, upon the advice Company shall not be obligated to (1) effect a registration pursuant to this Section 4(m) within 90 days after the effective date of a previous registration; (2) effect a registration pursuant to this Section 4(m) unless the request is for a number of shares of Common Stock with a market value that is equal to at least $3,000,000 as of the date of such request; (3) effect a registration if the Company counsel has effected two registrations on a Resale Registration Statement in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month periodperiod prior to such request, the Company may suspend the use of any Prospectus included in the or (4) file or effect a Resale Registration Statement if with respect to any Underlying Shares subject to a registration demand that may be sold under Rule 144 without restriction or limitation and without the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required requirement to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (xcompliance with Rule 144(c)(1) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicablelimitation.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Medicine Man Technologies, Inc.), Securities Purchase Agreement (Medicine Man Technologies, Inc.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the Registration Statement, Statement that have been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may permanently be sold without any restrictions pursuant to Rule 144, 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 “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall shall, on or prior to the Filing Deadline, prepare and file with the SEC a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) with respect to Investor’s covering the resale by the Investor of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Each Registration Statement (and any amendment or supplement) prepared pursuant hereto shall register for resale at least the number of shares of Common Stock equal to the Required Registration Amount as of date the Registration Statement is initially filed with the SEC. Each Registration Statement shall contain the “Selling Stockholders” and “Plan of Distribution” sections, sections in substantially the form attached hereto as specified by Investor. Exhibit A and contain all the required disclosures set forth on Exhibit B. The Company shall use its best efforts to have the each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 twenty-four (24) hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Gulfslope Energy, Inc.), Registration Rights Agreement (Cantabio Pharmaceuticals Inc.)
Registration. 2.1 The Company shall use all commercially reasonable efforts to, within thirty (a30) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness days of the Registration Statementdate of this Agreement, shall begin on file with the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 S-1 (or, if such form is unavailable for such a registration, on such other form as is available for such registration), covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon stock splits, stock dividends or similar transactions. In the event the Company is required to issue Commitment Shares to the Investor pursuant to the Investment Agreement, the resale of such Commitment Shares shall use reasonable best efforts to cause be included in the registration statement to be declared effective by the closing of the Fundamental Transaction. The initial Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. filed with the SEC.
2.2 The Company shall use its best all commercially reasonable efforts to have the initial Registration Statement, and each other Registration Statement required to be filed pursuant to the terms hereof, declared effective by the SEC as soon as practicable, but in no event later than the closing ninety (90) days of the Fundamental Transaction date of this Agreement (the “Initial Effectiveness DateDeadline”).
2.3 The Company agrees not to include any other securities in the Registration Statement covering the Registrable Securities without Investor’s prior written consent which Investor may withhold in its sole discretion. By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness DateFurthermore, the Company shall agrees that it will not file any other Registration Statement for other securities, until thirty calendar days after the Registration Statement for the Registrable Securities is declared effective by the SEC.
2.4 Notwithstanding the registration obligations set forth in this Section 2.4, if the staff of the SEC (the “Staff”) or the SEC informs the Company that all of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new Registration Statement (the “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-1 to register for resale the Registrable Securities as a secondary offering. If 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 commercially reasonable efforts to file with the SEC, in accordance with as promptly as allowed by the Staff or SEC, one or more registration statements on Form S-1 to register for resale those Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing that were not registered for resale on the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from or the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the New Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange ActAdditionally, the Company shall incorporate such report by reference into have the ability to file one or more New Registration Statement, if applicable, or shall file such amendments or supplements with Statements to cover the SEC on Registrable Securities once the same day on which Shares under the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the initial Registration Statement if the Company determines referenced in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableSection 2.1 have been sold.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Investment Agreement (Seaniemac International, Ltd.), Registration Rights Agreement (Seaniemac International, Ltd.)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m.October 4, New York time2000, on the Trading Day following the Initial Effectiveness Date, the Company Parent shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC a Form S-3 registration statement (or, if Form S-3 is not then available to Parent, a registration statement on such amendments other form as is then available to Parent for the registration for resale of the Registerable Shares) (including post-effective amendments) and supplements the "Registration Statement"), covering the resale of the Registerable Shares. Parent shall use its commercially reasonable efforts to cause the Registration Statement and related Prospectus to be filed pursuant to Rule 424, declared effective as may be necessary to keep such Registration Statement effective at all times during soon as practicable after the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject filing. Subject to the terms of this Agreement, Parent shall use commercially reasonable efforts to cause the Registration Statement to remain effective until the earlier of (i) and, as so supplemented or amended, the date on which all Registerable Shares covered by the Registration Statement have been sold to be filed the public pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide (ii) one year after the Investor true and complete copies Closing Date, PROVIDED, HOWEVER, that the reporting requirements of all correspondence from and to the SEC relating to the Registration Statement; and (ivRule 144(c) comply with the provisions of under the Securities Act have been satisfied (the "Registration Effective Period").
(b) In connection with any exercise by MSDW Venture Partners, H & Q Indian Investors, L.P. or Oak Investment Partners, VIII, L.P. (including any transferee of rights of such holders, collectively, the "Investors") of their demand or piggyback registration rights pursuant to Section 2.2 and Section 2.3, respectively, of the Indian Network Services Corporation Amended and Restated Investor Rights Agreement, dated October 4, 1999, as amended by the Consent and Amendment to Investor Rights Agreement dated as of May [__], 2000 (as so amended, the "Investor Rights Agreement") or any other such registration rights granted by Parent to the Investors with respect to the shares of Parent Common Stock owned by the Investors as of the date hereof, Parent shall notify the Stockholders in writing at least thirty (30) days prior to the filing of any registration statement under the Securities Act for purposes of a public offering of securities of the Parent in connection with such exercise. Parent will afford each such Stockholder an opportunity to include in such registration statement Registerable Shares held by such Stockholder. The number of Registerable Shares that may be included in such registration statement by a Stockholder shall equal a percentage of such Stockholder's Registerable Shares equal to the percentage of Registerable Securities (as defined in the Investor Rights Agreement) (or the applicable percentage with respect to any other registration rights granted by Parent to the Investors with respect to the shares of Parent Common Stock owned by the Investors as of the date hereof) held by the Investors that is proposed to be sold by the Investors under such registration statement. Each Stockholder desiring to include in any such registration statement any part of the Registerable Shares held by it shall, within fifteen (15) days after the above-described notice from the Parent, so notify the Parent in writing. Such notice shall state the intended method of disposition of all Registrable Securities of the Company covered Registerable Shares by such Registration Statement until such time as all of such Registrable Securities Stockholder. If the registration statement under which the Parent gives notice under this Section 2.2(b) is for an underwritten offering, the Parent shall have been disposed of in accordance with so advise the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementStockholders. In such event, the case right of amendments and supplements to the Registration Statement required any such Stockholder to be filed pursuant to this Agreement (including included in a registration pursuant to this Section 2(c)2.2(b) by reason shall be conditioned upon such Stockholder's participation in such underwriting and the inclusion of such Stockholder's Registerable Shares in the underwriting to the extent provided herein and subject to all terms and conditions of the Company’s filing a report on Form 10-K, Form 10-QInvestor Rights Agreement, or Form 8-K or any analogous report other agreement under which registration rights are granted by Parent to the Securities Exchange ActInvestors with respect to the shares of Parent Common Stock owned by the Investors as of the date hereof, the Company has granted applicable to such registration. All Stockholders proposing to distribute their Registerable Shares through such underwriting shall incorporate such report by reference enter into the Registration Statement, if applicable, or shall file such amendments or supplements an underwriting agreement in customary form with the SEC on the same day on which the Exchange Act report is filed which created the requirement underwriter or underwriters selected for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective underwriting by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Parent.
Appears in 2 contracts
Sources: Merger Agreement (Internap Network Services Corp/Wa), Registration Rights Agreement (Internap Network Services Corp/Wa)
Registration. After the Closing, Seller will use its commercially reasonable efforts to register the Shares with the SEC by filing a Form S-3 registration statement (aor successor registration form adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by Buyer with the SEC) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file (the "Registration Statement") and obtain and maintain shall provide evidence of the effectiveness of the same to Seller; provided, however, that if Buyer, in its sole and absolute discretion, determines that filing the Registration Statement would be detrimental to Buyer it may defer filing of the Registration Statement for up to sixty (60) days until such time as Buyer determines that such a filing would not be detrimental to Buyer. If after the Registration Statement becomes effective, Buyer determines, in its sole and absolute discretion, that sales pursuant to the prospectus, included in such Registration Statement, should be suspended for any reason, Buyer shall begin on the date hereof so notify Seller and continue until all the Registrable Securities have been sold or may be sold without any restrictions Seller shall immediately cease selling Shares pursuant to Rule 144, as determined by the counsel to the Company such prospectus and shall not sell any additional Shares pursuant to a such prospectus until Buyer delivers to Seller written opinion letter notice that it may again sell the Shares. If Seller is permitted to such effectsell the Shares in accordance with federal securities laws without registration thereunder, addressed the Buyer in its sole and reasonably acceptable absolute discretion may cease its efforts to file the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than with the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (SEC or, if the Company is ineligible to file on Form S-3Registration Statement has been filed with, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be or declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sectionsby, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, withdraw such Registration Statement and have no further obligation to register the Shares under applicable securities laws. Seller shall cooperate with Buyer in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before preparing and filing the Registration Statement, the Company including providing any information Buyer requests, and shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments comply with all applicable securities laws in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file connection with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all sale of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementShares.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Italian Pasta Co), Asset Purchase Agreement (American Italian Pasta Co)
Registration. 2.1 The Company shall, within ten (a10) The Company’s registration obligations stated in calendar days upon the date of execution of this Section 2Agreement, including use its obligations, as set forth herein, commercially reasonable efforts to file and obtain and maintain effectiveness of with the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file SEC a Registration Statement or Registration Statements (as is necessary) on Form S-3 S-1 (or, if such form is unavailable for such a registration, on such other form as is available for such registration), covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of all of the Registrable Securities, and which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The 1933 Act, such Registration Statement (and any amendment also covers such indeterminate number of additional shares of Common Stock as may become issuable upon stock splits, stock dividends or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorsimilar transactions. The Company shall initially register for resale all of the Registrable Securities which would be issuable on the date preceding the filing of the Registration Statement based on the closing bid price of the Company’s Common Stock on such date as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the 1933 Act at then prevailing market prices (and not fixed prices).
2.2 The Company shall use its best all commercially reasonable efforts to have the Registration Statement Statement(s) declared effective by the SEC as soon as practicablewithin thirty (30) calendar days, but no more than ninety (90) calendar days after the Company has filed the Registration Statement.
2.3 The Company agrees not to include any other securities in no event later than the closing of Registration Statement covering the Fundamental Transaction (“Initial Effectiveness Date”)Registrable Securities without Investor’s prior written consent which Investor may withhold in its sole discretion. By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness DateFurthermore, the Company shall agrees that it will not file any other registration statement for other securities, until thirty calendar days after the Registration Statement for the Registrable Securities is declared effective by the SEC.
2.4 Notwithstanding the registration obligations set forth in this Section 2.1, if the staff of the SEC (the “Staff”) or the SEC informs the Company that all of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new registration statement (the “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form S-1 to register for resale the Registrable Securities as a secondary offering. If 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 commercially reasonable efforts to file with the SEC, in accordance with as promptly as allowed by the Staff or SEC, one or more registration statements on Form S-1 to register for resale those Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing that were not registered for resale on the Registration Statement, as amended, or the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the New Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Periodeach, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the an “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Additional Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Cannapharmarx, Inc.), Registration Rights Agreement (Nascent Biotech Inc.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 F-3 (or, if the Company is ineligible to file not then eligible, on Form S-3F-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with applicable SEC rules, then on Form S-1) with respect regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Each Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its commercially reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Reciprocal Standby Equity Purchase Agreement (SMX (Security Matters) Public LTD Co), Registration Rights Agreement (Lionheart III Corp)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (orF-1 or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with applicable SEC rules, if regulations and interpretations so as to permit the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling StockholdersShareholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Captivision Inc.), Share Purchase Agreement (Captivision Inc.)
Registration. The Company shall file with the SEC an initial Registration Statement within thirty (a30) The calendar days from the date of this Agreement covering at least 10,000,000 shares of Registrable Securities (the “Initial Registration Statement”), subject to any reduction in the registered share amount required by the SEC, so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the Securities Act at then prevailing market prices (and not fixed prices), subject to the aggregate number of authorized shares of the Company’s registration obligations stated Ordinary Shares then available for issuance in this Section 2its Certificate of Incorporation. The Initial Registration Statement shall register only Registrable Securities. The Investor and its counsel shall have a reasonable opportunity to review and comment upon the Initial Registration Statement and any amendment or supplement to such Initial Registration Statement and any related prospectus prior to its filing with the SEC, and the Company shall give due consideration to all reasonable comments. The Investor shall furnish all information reasonably requested by the Company for inclusion therein. The Company shall use its reasonable best efforts to have the Initial Registration Statement declared effective as soon as practicable, and any amendment declared effective by the SEC at the earliest possible date. The Company shall use reasonable best efforts to keep each Registration Statement effective, including its obligations, as set forth herein, but not limited to file pursuant to Rule 415 promulgated under the Securities Act and obtain and maintain effectiveness available for the resale by the Investor of all of the Registration Statement, shall begin on Registrable Securities covered thereby at all times until the earlier of (i) the date hereof and continue until on which the Investor shall have sold all the Registrable Securities have and the full Commitment Amount (as defined in the Purchase Agreement) has been sold or may be sold without any restrictions pursuant to Rule 144, as determined drawn down by the counsel to the Company pursuant to a written opinion letter to such effect, addressed Registration Statement and reasonably acceptable to (ii) the Company’s transfer agent date on which the Purchase Agreement is terminated (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Each Registration Statement (and including any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(dthereto and prospectuses contained therein) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for shall not more than 20 consecutive days or for a total of not more than 30 days in contain any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading misleading. In the event that (an “Allowed Delay”); providedi) the Initial Registration Statement or New Registration Statement (as defined below) becomes stale after the initial effectiveness of such Registration Statement or New Registration Statement and (ii) the Investor still has ownership of any of the Registrable Securities that the Investor cannot then sell without restriction pursuant to Rule 144 promulgated under the Securities Act, that the Company shall promptly (x) notify immediately file one or more post-effective amendments to facilitate the Investor in writing SEC’s declaration of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose effectiveness with respect to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Initial Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableor New Registration Statement.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Founder Group LTD), Securities Purchase Agreement (Founder Group LTD)
Registration. (a) The Company’s registration obligations stated in this To the extent that a Registration Statement filed pursuant to Section 22(b) or a Shelf Registration Statement is not available to effect the proposed transaction, including each Investor may request that the Company register under the Securities Act all or any portion of its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or▇-▇, if the Company is ineligible to file on Form S-3, then on Form S-1) ▇-▇ or any successor form thereto with respect to Investor’s resale a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form ▇-▇, ▇-▇ or any successor form thereto covering all of the Registrable Securities, 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 the Company shall use reasonable its best efforts to cause the registration statement such Registration Statement to be declared effective by the closing 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 Fundamental TransactionRegistrable Securities held by the Investors from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2(b) and shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than 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 (and any amendment or supplementfiled 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 415 under the Securities Act or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain “Selling Stockholders” a Prospectus in such form as to permit any Investor to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 2(b) shall provide for the sale or resale pursuant to any method or combination of methods legally available to, and “Plan requested by, the Investors. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to Section 2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for the resale of Distribution” sectionsall the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2(b), as specified by Investorbut in any event within one (1) business day of such date, the Company shall notify the Investors of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities.
(c) The Company shall use its best efforts to have qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement declared effective by the SEC as on Form ▇-▇, ▇-▇ or any successor form thereto. As soon as practicablepracticable after the date hereof, but in no event not later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Target Filing Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with (or confidentially submit to) the SEC such amendments (including post-effective amendments) and supplements to the Commission a Registration Statement and related Prospectus on Form F-3 , S-3 or the then appropriate form for an offering to be filed made on a delayed or continuous basis pursuant to Rule 424, as may be necessary to keep such 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement effective at Statement”) that covers all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus Registrable Securities then outstanding for an offering to be amended made on a delayed or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed continuous basis pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of 415 under the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
successor rule thereto (da “Shelf Registration”) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or and (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the cause such Shelf Registration Statement has not been to be declared effective by the Initial Effectiveness Date, or, subject to Section 2(d)Commission as soon as practicable thereafter. In addition, the Company shall use its best efforts to cause a Shelf Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damagesSection 2(c) to remain effective, and not as penalty, an amount equal to be supplemented and amended to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.extent necessary
Appears in 2 contracts
Sources: Merger Agreement (Foley Trasimene Acquisition II), Registration Rights Agreement (Cannae Holdings, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2a. On or prior to the applicable Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all of the Registrable Securities not yet registered that are held by Holders that have complied with the provisions of Section 3(k) prior to such date for an offering to be made on a continuous basis pursuant to Rule 415. Such Registration Statement required hereunder shall be on Form SB-2 or Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form SB-2 or Form S-3, in which case such Registration Statement shall be on another appropriate form herewith). Subject to the terms of this Agreement, the Company shall use its best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event not later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by such Registration Statement have been sold or may be sold without during any three month period within the volume restrictions pursuant to Rule 144, as 144as determined by the counsel to the Company, to the extent that a Holder still holds Registrable Securities (the "EFFECTIVENESS PERIOD"). Each Holder acknowledges and agrees that the Company shall be permitted to exclude such Holder's Registrable Securities from a Registration Statement if such Holder fails to timely comply with the Company's request for information pursuant to a written opinion letter to Section 3(k); provided if such effect, addressed and reasonably acceptable Holder provides such information prior to the Company’s transfer agent (the “Registration Period”). No filing of such Registration Statement the Company shall use commercially reasonable efforts to include such Registrable Securities on such Registration Statement; provided further that this provision does not otherwise waive the Company's obligation to register any security other than such Registrable Securities pursuant to the Registrable Securitiesterms hereunder upon such Holder providing the Company with the required information.
b. If: (bi) Within 10 days after a Registration Statement is not filed on or prior to the applicable Filing Date (For the avoidance of doubt, if the Company consummates files a “Fundamental Transaction” (Registration Statement without affording the Holder or Holders referenced in such Registration Statement the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferredrequired by Section 3(a), 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 no more than five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement on Form S-3 will not be "reviewed," or is not subject to further review, or (or, if iii) prior to the Company date when a Registration Statement is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be first declared effective by the closing Commission, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of the Fundamental Transaction. The such Registration Statement within thirty (and any 30) calendar days after the receipt of comments by or notice from the Commission that such amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the is required in order for such Registration Statement to be declared effective, or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the SEC as soon as practicable, but in no event later than Commission on or before the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial applicable Effectiveness Date, or (v) after a Registration Statement is first declared effective by the Commission, it ceases for any reason to remain continuously effective as to all Shares or Warrant Shares for which it is required to be effective, or the Holders are not permitted by the Company shall file with the SECto utilize a Prospectus therein to resell such Shares or Warrant Shares, for in accordance with Securities Act Rule 424 any such case fifteen (“Rule 424”), the final Prospectus 15) consecutive Trading Days but no more than an aggregate of twenty-five (25) Trading Days during any twelve (12) month period (which need not be consecutive Trading Days) provided that any days during which a Registration Statement ceases to be used in connection with sales pursuant effective due to the Registration Statement. Before filing the Registration Statement, the Company shall furnish of a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424amendment, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified supplement or incorporated document thereto by the Investor; (ii) cause Company at the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions request of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of Holders in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company order to amend or supplement the Registration Statement.
plan of distribution contained in the Prospectus shall not be counted towards such fifteen (d15) Beginning 60 or twenty-five (25) Trading Day periods provided the Company uses commercially reasonable efforts to cause such post-effective amendment to be declared effective (any such failure or breach being referred to as an "EVENT," and for purposes of clause (i) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five (5) Trading Day period is exceeded, or for purposes of clause (iii) the date which such thirty (30) calendar days is exceeded, or for purposes of clause (v) the date on which such fifteen (15) or twenty-five (25) Trading Day period, as applicable, is exceeded being referred to as "EVENT DATE"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Shares then held by such Holder, it being understood that (i) the payment by the Company shall be made following the materialization of the Event Date, e.g., if liquidated damages are to be paid pursuant to clause (iv) above, then the liquidated damages shall be computed and paid immediately following the declaration by the Commission of effectiveness, and (ii) the maximum aggregate payment for liquidated damages hereunder shall not exceed fifteen percent (15.0%) of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any Shares or Warrant Shares then held by such Holder. If the Company fails to pay any liquidated damages pursuant to this Section 2(b) in full within seven (7) business days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month perioddate payable, the Company may suspend the use will pay interest thereon at a rate of any Prospectus included in the Registration Statement if the Company determines in good faith 6% per annum (or such lesser maximum amount that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required permitted to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (xpaid by applicable law) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor 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 daily pro-rata basis for any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part portion of a month (“Delay Period”) that prior to the Registration Statement has not been declared effective by cure of an Event. Notwithstanding anything herein to the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424contrary, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, agrees and not as penalty, an amount equal acknowledges that any extensions to the product obtained by multiplying $20,000 by Filing Date or Effectiveness Date on account of a fraction, Holder failing to timely comply with Section 3(k) relate solely to that Holder and in no way effect the numerator of which shall be the number of days in that Delay Period, Filing Date and the denominator of which is 30Effectiveness Date under this Agreement as they relate to any other Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zone 4 Play Inc), Registration Rights Agreement (Zone 4 Play Inc)
Registration. Parent shall use its commercially reasonable best efforts to prepare and file with the Securities and Exchange Commission (a"SEC") The Company’s a registration statement on Form S-3 (the "Registration Statement") covering the resale of the Registrable Securities as soon as reasonably practicable but in any event within thirty (30) days following the Effective Time; provided, however, that each Holder shall provide all such information and materials and take all such action as may be reasonably required in order to permit Parent to comply with all applicable requirements of the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), and of the SEC, and to obtain any desired acceleration of the effective date of such registration statement, such provision of information and materials to be a condition precedent to the obligations stated in of Parent pursuant to this Agreement. Parent shall not be required to effect more than one (1) registration pursuant to this Section 2, including 1.4. The offerings made pursuant to such registration shall not be underwritten. Parent shall use its obligations, commercially reasonable best efforts to have such Registration Statement declared effective as set forth herein, to file and obtain and maintain effectiveness soon as practicable following the Effective Time. The Holders shall furnish such information as Parent may reasonably request in connection with the preparation of the Registration Statement, shall begin on the date hereof and continue until all . Upon registration of the Registrable Securities with the SEC in accordance with this Agreement, the Registrable Securities may be sold in accordance with the Registration Statement under the 1933 Act. Parent shall use its reasonable efforts to cause such Registration Statement to remain effective until the earlier of (i) the date on which all Registrable Securities covered by the Registration Statement have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales public pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in (ii) such time as which all Registrable Securities covered by the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to may be filed sold pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing 144 within a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12three-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (iiiii) amend or supplement two (2) years after the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableClosing Date.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Registration Rights Agreement (Messagemedia Inc), Merger Agreement (Softbank Holdings Inc Et Al)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than sixty (60) The Company’s registration obligations stated days after the Filing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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, shall begin on Statement will not be “reviewed,” or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) with respect to such Holder, such time as all Registrable Securities held by such Holder may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s transfer agent to such effect (the “Registration Effectiveness Period”). No For purposes of the obligations of the Company under this Agreement, no Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a be considered “Fundamental Transactioneffective” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the any Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Securities unless such Registration Statement (and any amendment or supplement) shall contain lists the Holders of such Registrable Securities as “Selling Stockholders” and includes such other information as is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any such Holder is not included as a “Plan of DistributionSelling Stockholder” sections, as specified by Investorpursuant to Section 3(m). The Company shall use its best efforts to have the Such Registration Statement declared effective by also shall cover, to the SEC as soon as practicable, but in no event later than extent allowable under the closing of Securities Act and the Fundamental Transaction Rules promulgated thereunder (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with including Securities Act Rule 424 (“Rule 424”416), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statementsuch indeterminate number of additional shares of Common Stock resulting from stock splits, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended stock dividends or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC similar transactions with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementSecurities.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 2 contracts
Sources: Investor Rights Agreement (Access Pharmaceuticals Inc), Investor Rights Agreement (Access Pharmaceuticals Inc)
Registration. The Company at its sole cost and expense shall file a registration statement with the U.S. Securities and Exchange Commission covering the Shares (athe "Registration Statement") no later than ninety (90) after the Closing. The Company’s registration obligations stated Company shall prepare and file with the Commission such Registration Statement to be made on a continuous basis pursuant to Rule 415 and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (i) the date when all securities covered by such Registration Statement have been sold or (ii) the date on which the securities may be sold pursuant to Rule 144. The Subscriber agrees to cooperate with the Company in this Section 2, including its obligations, as set forth herein, to file the preparation and obtain and maintain effectiveness filing of the Registration Statement, shall begin on and in the date hereof and continue until all furnishing of information concerning the Registrable Securities have been sold or may be sold Subscriber for inclusion therein, including, without limitation, any restrictions pursuant to Rule 144, as determined efforts by the counsel Company to establish the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to exemption under the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale Securities Act of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions sale of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration StatementSubscriber hereunder. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), If the Registration Statement is not effective or filed within the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penaltyforegoing time period, an amount equal to the product obtained by multiplying $20,000 by a fraction, purchase price of the numerator of which Shares shall be payable to the number Subscriber at an interest rate of days 8% per annum with respect to the period in which the Company is in default of such filing until the earlier of (a) registration rights are no longer required to be effective and/or (b) Subscriber no longer owns any of the Shares. Subscriber agrees and acknowledges that Delay Period, such Registration Statement shall be filed by the Company on the basis of commercially reasonable efforts and there can be no assurance that such Registration Statement will be declared effective by the Securities and Exchange Commission. Subscriber furthermore acknowledges and agrees that the Registration Statement is not exclusive to the Subscriber and the denominator Company, as well as other shareholders of which is 30the Company, may, at the sole discretion of the Company, register other shares of the Company's common stock and/or other securities thereon.
Appears in 1 contract
Sources: Subscription Agreement (Wireless Age Communications Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, As soon as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on practicable following the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 of this Agreement (the “Registration Period”). No Registration Statement shall register any security other but not later than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible PreferredFiling Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or, or if such form is not available to the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the another form appropriate for such registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorin accordance herewith). The Company shall use its best commercially reasonable efforts to have cause the Registration Statement to be declared effective by under the SEC Securities Act as soon as practicable, but in no event later than practicable after the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review Filing Date and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement continuously effective at under the Securities Act until such date as is the earliest of (x) the date when all times during the Registrable Securities covered by such Registration Period, including Statement have been sold or (y) with respect to changes in any Holder, such time as all Registrable Securities held by such Holder may be sold without any restriction pursuant to Rule 144(k) as determined by the Company, or (z) the date that is two years following the date of this Agreement (the “Effectiveness Period”). For purposes of the obligations of the Company under this Agreement, no Registration Statement shall be considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as “Selling Stockholders” and “Plan of Distribution” sections, includes such other information as specified by the Investor; (ii) cause the related Prospectus is required to be amended or supplemented by disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any required Prospectus supplement (subject such Holder is not included as a “Selling Stockholder” pursuant to Section 3(m). Such Registration Statement also shall cover, to the terms extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act Rule 416), such indeterminate number of this Agreement) andadditional shares of Common Stock resulting from stock splits, as so supplemented stock dividends or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC similar transactions with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementSecurities.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (ai) The Company’s registration obligations stated Subject to the terms and conditions of this Purchase Agreement, the Company covenants and agrees that as promptly as practicable and in this Section 2any event, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on no later than the date hereof and continue until all that is 90 days following the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred)Closing Date, the Company shall file have prepared and filed with the SEC a Shelf Registration Statement on Form S-3 covering the resale of all of the Registrable Securities (or, if permitted by the rules of the SEC, otherwise designate an existing Shelf Registration Statement filed with the SEC to cover the Registrable Securities), and, to the extent the Shelf Registration Statement has not theretofore been declared effective, the Company is ineligible shall use commercially reasonable efforts to file on Form S-3cause such Shelf Registration Statement to be declared or become effective as soon as practicable 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 such time as there are no Registrable Securities remaining (including by refiling such Shelf Registration Statement (or a new Shelf Registration Statement) if the initial Shelf Registration Statement expires). The Shelf Registration, then on Form S-1) with respect to Investor’s resale the extent it only provides for the registration of the Registrable Securities, shall contain a "plan of distribution" and disclosure regarding the selling Holders approved by, and in form and substance reasonably satisfactory to, the Holders. Notwithstanding the registration obligations set forth in this Section 2.5(a)(i), in the event the SEC informs the Company shall that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each of the Holders thereof and use its commercially reasonable best efforts to cause file amendments to the registration statement to be declared effective by the closing of the Fundamental Transaction. The initial Shelf Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective required by the SEC as soon as practicableand/or (ii) withdraw the initial Shelf Registration Statement and file a new Shelf Registration Statement, but in no event later than either case covering the closing maximum number of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with Registrable Securities permitted to be registered by the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant on such form available to the Registration Statement. Before Company to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing the such amendment or new Shelf Registration Statement, the Company shall furnish be obligated to use its commercially reasonable efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the applicable SEC guidance, including without limitation, Compliance and Disclosure Interpretation 612.09 relating to Securities Act Rules. In the event the Company amends the initial Shelf Registration Statement or files a draft of it new Shelf Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by the SEC or SEC guidance provided to the Investor Company or to registrants of securities in general, one or more registration statements on such form available to the Company to register for resale those Registrable Securities that were not registered for resale on the initial Shelf Registration Statement, as amended, or the new Shelf Registration Statement. No Holder shall be named as an "underwriter" in any Registration Statement without such Holder's prior written consent. If, before a registration statement pursuant to this Section 2.5(a)(i) is filed with the SEC or declared effective, the Board of Directors of the Company determines in its review and commentgood faith judgment, that the filing of a registration statement or the declaration of effectiveness of a registration statement, in each case with respect to the Registrable Securities (i) would require disclosure of material non-public information the disclosure of which would have a Material Adverse Effect on the Company or would otherwise adversely affect a material financing, acquisition, disposition, merger, reorganization or other comparable transaction involving the Company, or (ii) would otherwise adversely affect a public offering of shares of common stock or other equity securities of the Company for the account of the Company, (such circumstances being referred to as "Filing Suspension Events"), the Company shall deliver a certificate to such effect signed by the principal or chief executive officer or principal financial officer of the Company to the Holders. The Company shall include Investor’s reasonable comments not be required to file a registration statement pursuant to Section 2.5(a)(i) or may suspend pursuing the effectiveness of such registration statement until (A) with respect to the Filing Suspension Event described in clause (i) above, the Registration Statement given within 48 hours earlier of the receipt thereof from date upon which such material information is disclosed to the Companypublic or ceases to be material or 90 days after the Company makes such good faith determination, or (B) with respect to the Filing Suspension Event described in clause (ii) above, 90 days after the Company makes such good faith determination; provided, however, that in no event shall Filing Suspension Events be permitted to take effect more than once in any twelve month period.
(cii) During Any registration pursuant to this Section 2.5(a) shall be effected by means of a shelf registration under the Securities Act (a "Shelf Registration PeriodStatement") in accordance with the methods and distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act. If Purchaser or any other Holder of Registrable Securities to whom the registration rights conferred by this Purchase Agreement have been transferred in compliance with this Purchase Agreement intends to distribute any Registrable Securities by means of an underwritten offering, they 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 2.5(c). The lead underwriters in any such distribution shall be selected by the Holders of a majority of the Registrable Securities to be distributed, subject to approval of the Company not to be unreasonably withheld.
(iii) Whenever the Company proposes to register any of its securities substantially similar to the Registrable Securities, whether or not for its own account, other than a registration pursuant to Section 2(d2.5(a)(i) 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 will give prompt written notice to Purchaser and all other Holders of its intention to effect such a registration (but in no event less than 15 days prior to the anticipated filing date) and will 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 tenth business day prior to the planned effective date of such Piggyback Registration. The Company may terminate or withdraw any registration under this Section 2.5(a)(iii) prior to the effectiveness of such registration, whether or not Purchaser or any other Holders have elected to include Registrable Securities in such registration. The expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.5(b).
(iv) If the registration referred to in Section 2.5(a)(iii) is proposed to be underwritten, the Company will so advise and all other Holders as a part of the written notice given pursuant to Section 2.5(a)(iii). In such event, the right of Purchaser and all other Holders to registration pursuant to this Section 2.5(a) will be conditioned upon such persons' participation in such underwriting and the inclusion of such person's Registrable Securities in the underwriting, and each such person will (together with the Company and the other persons distributing their securities through such underwriting) enter into an underwriting agreement in customary and reasonable 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 Purchaser (if Purchaser is participating in the underwriting).
(v) If a Piggyback Registration relates to an underwritten primary offering on behalf of the Company, and the managing underwriters advise the Company that in their reasonable opinion the number of securities requested to be included in such registration exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per security offering price), the Company shall, promptly, (i) prepare and file with will include in such registration or prospectus only such number of securities that in the SEC reasonable opinion of such amendments underwriters can be sold without adversely affecting the marketability of the offering (including post-effective amendmentsan adverse effect on the per security offering price), which securities will be so included in the following order of priority: (A) first, the securities the Company proposes to sell; (B) second, Registrable Securities of Purchaser and supplements to all other Holders who have requested registration of Registrable Securities, pro rata on the Registration Statement basis of the aggregate number of such securities or shares owned by each such person; and related Prospectus (C) third, any other securities of the Company that have been requested to be filed pursuant to Rule 424so included, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Purchase Agreement.
(vi) andIn the event that Form S-3 is not available for the registration of the resale of Registrable Securities under Section 2.5(a)(i), as so supplemented or amendedthe Company shall (A) register the resale of the Registrable Securities on another appropriate form, including, without limitation, Form S-1 and (B) undertake to be filed pursuant to Rule 424; (iii) respond to any comments received from register the SEC with respect to Registrable Securities on Form S-3 promptly after such form is available, provided that the Company shall maintain the effectiveness of the Shelf Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement then in effect until such time as all of such a Shelf Registration Statement on Form S-3 covering the Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30SEC.
Appears in 1 contract
Sources: Note Purchase Agreement (Bankwell Financial Group, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to Company shall file and obtain and maintain effectiveness of with the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No SEC an initial Registration Statement shall register any security other than within forty-five (45) calendar days from the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” Closing Date (as defined in the Certificate Purchase Agreement) covering a number of Designations for Ordinary Shares equal to the Convertible PreferredCommitment Amount (as defined in the Purchase Agreement) divided by the Floor Price (as defined in Pre-Paid Purchase #1) as Registrable Securities (the Initial Registration Statement”) so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the Securities Act at then prevailing market prices (and not fixed prices). The Initial Registration Statement shall register only Registrable Securities. The Company shall provide Investor and its counsel reasonable opportunity to review and comment upon the Initial Registration Statement and any amendment or supplement to such Initial Registration Statement and any related prospectus prior to its filing with the SEC, and the Company shall file a give due consideration to all reasonable comments the Company receives from Investor and its counsel. The Investor shall furnish all information reasonably requested by the Company for inclusion therein. The Company shall use its reasonable best efforts to have the Initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securitiesdeclared effective as soon as practicable, and any amendment declared effective by the SEC at the earliest possible date. The Company shall use reasonable best efforts to cause keep each Registration Statement effective, including but not limited to pursuant to Rule 415 promulgated under the registration statement to be declared effective Securities Act and available for the resale by the closing Investor of all of the Fundamental TransactionRegistrable Securities covered thereby at all times until the earlier of (i) the date on which the Investor shall have sold all the Registrable Securities and the full Commitment Amount has been drawn down by the Company pursuant to the Purchase Agreement and (ii) the date on which the Purchase Agreement is terminated (the "Registration Period"). The Each Registration Statement (and including any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(dthereto and prospectuses contained therein) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for shall not more than 20 consecutive days or for a total of not more than 30 days in contain any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading misleading. In the event that (an “Allowed Delay”); providedi) the Initial Registration Statement or New Registration Statement (as defined below) becomes stale after the initial effectiveness of such Registration Statement or New Registration Statement and (ii) the Investor still owns any of the Registrable Securities that the Investor cannot then sell without restriction pursuant to Rule 144 promulgated under the Securities Act, that the Company shall promptly (x) notify use commercially reasonable efforts to as soon as possible file one or more post-effective amendments to facilitate the Investor in writing SEC’s declaration of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose effectiveness with respect to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Initial Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableor New Registration Statement.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cn Energy Group. Inc.)
Registration. (ai) The Company’s If at any time prior to the registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall below) under Section 5.2(c)(iii) SYS proposes to file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) registration statement with respect to Investor’s resale SYS Common Stock under the Securities Act in a primary registration on behalf of the Registrable SecuritiesSYS or in a secondary registration on behalf of holders of such securities, and the Company shall use reasonable best efforts to cause the other than a registration statement relating to be declared effective employee benefit plans or corporate reorganizations or other transactions covered by Rule 145 promulgated under the closing of the Fundamental Transaction. The Registration Statement (and Securities Act or a registration on any amendment or supplement) registration form that does not permit secondary sales, SYS shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC give written notice as soon as practicable, but in no event not later than fifteen (15) business days prior to the closing proposed filing date of the Fundamental Transaction registration statement, to the Stockholder Representative of its intention to file such registration statement and shall offer to include in such registration statement such number of outstanding shares of SYS Common Stock issued pursuant to this Agreement as part of the Merger Consideration and Earnout Consideration, if any (collectively, the “Initial Effectiveness DateRegistrable Securities”), with respect to which SYS has received a written request from the Ai Metrix Stockholders for inclusion therein within ten (10) business days after the receipt by the Stockholder Representative of notice from SYS. By 9:30 a.m.All registrations requested pursuant to this Section 5.2(c)(i) are referred to herein as “Piggyback Registrations.”
(ii) If a Piggyback Registration involves an underwriting, New York time, on SYS shall so advise the Trading Day following Stockholder Representative as a part of the Initial Effectiveness Datewritten notice given pursuant to Section 5.2(c)(i). In such event, the Company right of an Ai Metrix Stockholder to participate in that Piggyback Registration shall be conditioned upon such Ai Metrix Stockholder’s participation in such underwriting. Each such Ai Metrix Stockholder shall enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by SYS, but each such Ai Metrix Stockholder shall be entitled to withdraw its Registrable Securities from such registration prior to its effective date in the event that such Ai Metrix Stockholder shall disapprove of any of the terms of the related underwriting agreement. If the underwriter(s) for the offering being registered by SYS shall determine in good faith and advise SYS that in its/their opinion the number of Registrable Securities requested to be included in such registration exceeds the number that can be sold in such offering without adversely affecting the distribution of such securities by SYS, SYS shall include in such registration (A) first, the securities that SYS proposes to sell, if any, (B) second, the securities with demand registration rights requesting such registration, if any, (C) third, to the extent possible, the Registrable Securities requested to be included in such registration, apportioned pro rata among the holders of such securities, and (D) fourth, to the extent possible, any other securities with piggyback registration rights requesting to be included therein.
(iii) To the extent not previously registered under Section 5.2(c)(i), SYS shall use its commercially reasonable efforts to prepare and, within sixty (60) days after the (A) the SYS Stockholders Meeting (if the Earnout Consideration is required to be paid under Section 2.5) or (B) the EBITDA Determination Date (if the Earnout Consideration is not required to be paid under Section 2.5), as applicable, file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), Commission a registration statement on any appropriate form covering the final Prospectus resale of all outstanding Registrable Securities. SYS shall use commercially reasonable efforts to be used in connection with sales pursuant to have the Registration Statement. Before filing registration statement declared effective by the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the CompanyCommission as soon as reasonably practicable after such filing.
(civ) During the Registration Period, subject to Section 2(d), the Company shall, promptly, SYS shall (iA) prepare and file with the SEC Commission and promptly notify the Ai Metrix Stockholders of the filing of any amendment or supplement to such registration statement or prospectus as may be necessary to correct any statement therein or omission therefrom if, at any time when a prospectus relating to the Registrable Securities is required to be delivered under the Securities Act, any event with respect to SYS shall have occurred as a result of which any prospectus would include an untrue statement of material fact or omit to state any material fact necessary to make the statements therein not misleading; (B) prepare and file with the Commission such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, such registration statement or prospectus as may be necessary to keep such registration statement or prospectus effective until the earlier of (x) the date on which all securities covered by such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan have been disposed of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (ivy) one hundred eighty (180) days after the effective date of such registration statement, and comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities of the Company covered by such Registration Statement until registration statement during such time as all of such Registrable Securities shall have been disposed of effective period in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement; (C) in case the Registration Statement. In Ai Metrix Stockholders are required to deliver a prospectus, promptly prepare such amendment or amendments to such registration statement and such prospectus or prospectuses as may be necessary to permit compliance with the case requirements of amendments Section 10(a)(3) of the Securities Act; (D) advise the Ai Metrix Stockholders promptly after SYS shall receive notice or obtain knowledge of the issuance of any stop order by the Commission suspending the effectiveness of any such registration statement or amendment thereto or of the initiation or threatening of any proceedings for that purpose, and supplements promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; (E) use commercially reasonable efforts to qualify such Registrable Securities for sale under the securities or “blue sky” laws of such states within the United States as the Ai Metrix Stockholders may reasonably designate, except that SYS shall not be required in connection therewith or as a condition thereto to qualify to do business in any such state or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject; (F) furnish to the Registration Statement Ai Metrix Stockholders, as soon as available, copies of any such registration statement and each preliminary and final prospectus, or supplement or amendment required to be filed pursuant prepared with respect thereto, all in such quantities as they may from time to this Agreement time reasonably request; and (including pursuant to this Section 2(c)G) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements cooperate with the SEC on holders of Registrable Securities to facilitate the same day on which the Exchange Act report is filed which created the requirement for the Company timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to amend or supplement the Registration Statementbe sold under such registration, and enable such Registrable Securities to be in such denominations and registered in such names as such holders may reasonably request.
(dv) Beginning 60 days after effectiveness The Ai Metrix Stockholders agree that, upon receipt of any notice from SYS of the Registration Statementhappening of any event of the kind described in Section 5.2(c)(iv)(A), upon they will forthwith discontinue the advice disposition of Company counsel the Registrable Securities until they have received copies of the supplemented or amended prospectus contemplated by Section 5.2(c)(iv)(A), or until the Ai Metrix Stockholders are advised in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend writing by SYS that the use of the prospectus may be resumed, and have received copies of any Prospectus included additional or supplemental filings that are incorporated by reference in the Registration Statement prospectus, and, if so directed by SYS, the Company determines Ai Metrix Stockholders will deliver to SYS all copies, other than permanent file copies, then in good faith the Ai Metrix Stockholders’ possession of the prospectus covering the Registrable Securities current at the time of receipt of such notice; provided that the obligations of SYS under Section 5.2(c)(iv) with respect to maintaining any registration statement current and effective shall be extended by a period of days equal to the period such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableeffect.
(evi) For The Ai Metrix Stockholders shall furnish information to SYS concerning the Ai Metrix Stockholders’ holdings of securities of SYS and the proposed method of sale or other disposition of the Registrable Securities and such other information and undertakings relating to the Ai Metrix Stockholders as shall be reasonably required in connection with the preparation and filing of any calendar month registration statement and any amendments thereto covering all or part of a month (“Delay Period”) the Registrable Securities in order to assist SYS in complying with the Securities Act and the Exchange Act. The Ai Metrix Stockholders further agree to enter into such undertakings and take such other action relating to the conduct of the proposed offering that SYS may reasonably request as being necessary to assist SYS in complying with the Registration Statement has not been declared effective federal and state securities laws or otherwise to effectuate the offering and sale of the Registrable Securities hereunder by the Initial Effectiveness DateAi Metrix Stockholders, orso long as such undertakings and actions would not materially reduce the benefit of such offering and sale to the Ai Metrix Stockholders. The failure of any Ai Metrix Stockholder to furnish any information or documents or take any actions in accordance with the foregoing shall not affect the obligations of SYS under this Section 5.2(c) to any remaining sellers who furnish such information and documents or take such actions.
(vii) SYS shall pay all registration expenses incident to the registration of the Registrable Securities, subject including all registration and filing fees, fees and expenses of complying with securities or blue sky laws, word processing, duplicating and printing expenses, and fees and expenses of counsel for SYS and of its independent public accountants. With respect to Section 2(d)sales of Registrable Securities, the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, Ai Metrix Stockholders shall pay Investor, as liquidated damagesall underwriting discounts and commissions and fees, and not as penaltyall expenses of any separate legal counsel retained by or on behalf of any or all of the Ai Metrix Stockholders, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30if any.
Appears in 1 contract
Sources: Merger Agreement (Sys)
Registration. (a) The Company’s registration obligations stated in this Section 2Not later than the Filing Date, including its obligations, the Company shall file or will have filed with the Commission a draft Registration Statement on Form F-3 or Form F-1 relating to the resale by the Holders of all (or such other number as set forth herein, to file and obtain and maintain effectiveness the Commission will permit) of the Registrable Securities. Subject to the terms of this Agreement, the Company shall use commercially reasonable efforts to cause such Registration StatementStatement (including, shall begin on without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the date hereof or the filing thereof, but in any event no later than the applicable Effectiveness Date, and continue shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until all the Registrable Securities covered by such Registration Statement (i) have been sold sold, thereunder or pursuant to Rule 144, or (ii) may be sold without any volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Transfer Agent and the affected Holders (the “Registration Effectiveness Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company consummates that all of the Registrable Securities cannot, as a “Fundamental Transaction” (result of the application of Rule 415, be registered for resale as defined in a secondary offering on a single registration statement, the Certificate Company agrees to promptly inform each of Designations the Holders thereof and use its best efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form F-3 or such other form available to register for resale the Convertible PreferredRegistrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form F-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
i. First, the Company shall reduce or eliminate any securities to be included by any Person other than a Holder; and
iii. Second, the Company shall reduce Registrable Securities represented by Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form F-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If the Initial Registration Statement is not filed on or prior to the Filing Date, then, in addition to any other rights the Holders may have hereunder or under applicable law, for each five (5) Trading Period by which the Filing Date is delayed, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of one percent (1.0%) multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement.
(e) If Form F-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form F-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of F-3 covering the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Commission.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to the Filing Deadline, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of all of the Registration Statement, shall begin on the date hereof and continue until all the then outstanding Registrable Securities have been sold or may not already covered by an existing and effective Registration Statement for an offering to be sold without any restrictions made on a continuous basis pursuant to Rule 144415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as determined by the counsel to the Company Holders may reasonably specify (each, an “Initial Registration Statement”). The Initial Registration Statement shall be on Form S-3 (if available and, if not available, on Form S-1) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a written opinion letter to review of such effect, addressed and reasonably Registration Statement) a “Plan of Distribution” section mutually acceptable to the Holders and the Company’s transfer agent (the “Registration Period”). No The Initial Registration Statement shall register any security may be in the form of a shelf registration statement pursuant to which the Company or other than shareholders of the Registrable SecuritiesCompany may offer and sell securities from time-to-time.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the The Company shall use its commercially reasonable best efforts to cause the registration statement Initial Registration Statement to be declared effective by the closing Commission as soon as practicable (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5) Business Days after the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed,” or will not be subject to further review and that the effectiveness of such Registration Statement may be accelerated) and shall, subject to Section 3(c) hereof, use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the earlier of such time as (i) all of the Fundamental Transaction. The Registration Statement Registrable Securities and Warrants are no longer owned by the Holders or (and any amendment or supplementii) shall contain all of the Shares, including the Warrant Shares, are freely tradable, without restriction, pursuant to Rule 144 promulgated under the Securities Act (the “Selling Stockholders” and “Plan of Distribution” sections, as specified by InvestorEffectiveness Period”). The Company shall use its best reasonable commercial efforts to have the ensure that each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(dthereto and Prospectuses contained therein) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for shall not more than 20 consecutive days or for a total of not more than 30 days in contain any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, therein (in the case of Prospectuses, in the Prospectus in light of the circumstances under in which they were made) not misleading. Each Registration Statement shall also cover, not misleading to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Company shall request effectiveness of a Registration Statement as of 5:00 p.m. Eastern Time on the Effective Date. The Company shall notify the Holders via facsimile or e-mail of the effectiveness of a Registration Statement within one (1) Business Day of the date on which the Company telephonically confirms effectiveness with the Commission. To the extent deemed required under the Securities Act, the Company shall, by 9:30 a.m. Eastern Time on the first Business Day after the Effective Date, file a Rule 424(b) prospectus with the Commission.
(c) If any Holder intends to distribute Registrable Securities by means of an underwriting in connection with the effectiveness of the Registration Statement, such Holder shall so advise the Company, and the Company shall select the underwriter(s), who shall be reasonably acceptable to a majority-in-interest of the Holders intending to distribute Registrable Securities in the underwriting. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting and the Company. If the underwriter(s) advise(s) in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all such Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. Notwithstanding the foregoing, the Company may delay filing a prospectus supplement for any underwriting request pursuant to this Section 2(c) for up to 90 days following receipt of the request if (i) in the good faith judgment of the Board of Directors of the Company (the “Allowed DelayBoard”), any such registration would be detrimental to the Company, and the Board concludes, as a result, that it is prudent to defer the filing of such registration statement at such time, and (ii) the Company shall furnish to such Holders requesting a registration pursuant to this Section 2(c) a certificate signed by the President of the Company stating that in the good faith judgment of the Board, it would be materially detrimental to the Company for such registration statement to be filed in the near future and that it is, therefore, prudent to defer the filing of such registration statement; provided, however, that the Company shall promptly not defer its obligation in this manner more than an aggregate of 90 days in any 12-month period. Any underwriting request under this Section 2(c) must cover shares with a value of at least $20,000,000.
(xd) The Company shall notify the Investor all Holders of Registrable Securities in writing at least ten days prior to the filing of any Registration Statement under the Securities Act for purposes of a public offering of securities of the commencement Company (and the termination) of an Allowed Delayincluding, but shall not (without the prior written consent limited to, Registration Statements relating to secondary offerings of securities of the Investor) disclose Company), excluding Special Registration Statements, and will afford each Holder an opportunity to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor include in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month all or part of such Registrable Securities held by such Holder. Each Holder desiring to include in any such Registration Statement all or any part of the Registrable Securities held by it shall, within seven days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the intended method of disposition of the Registrable Securities by such Holder. If a month (“Delay Period”) that Holder decides not to include all of its Registrable Securities in any Registration Statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent Registration Statement or Registration Statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein. If the Registration Statement has not been declared effective by of which the Initial Effectiveness Date, or, subject to Company gives notice under this Section 2(d), the Registration Statement ) is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424for an underwritten offering, the Company shallshall so advise the Holders of Registrable Securities. In such event, on the first day right of each calendar month following any such Holder to include Registrable Securities in a registration pursuant to this Section 2(d) shall be conditioned upon such Holder’s participation in such underwriting and the month inclusion of such Holder’s Registrable Securities in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal the underwriting to the product obtained extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by multiplying $20,000 by the Company. Notwithstanding any other provision of this Agreement, if the Company determines in good faith, based on consultation with the underwriter, that marketing factors require a fraction, the numerator limitation of which shall be the number of shares to be underwritten, the number of shares that may be included in the underwriting shall be allocated, first, to the Company; and second, to the Holders along with all other stockholders of the Company with registration rights at such time, on a pro rata basis based on the total number of registrable securities held in the aggregate by the Holders and such other stockholders. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) business days prior to the effective date of the Registration Statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder which is a partnership, limited liability company or corporation, the partners, retired partners, members, retired members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members and retired members and any trusts for the benefit of any of the foregoing person shall be deemed to be a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in that Delay Periodsuch “Holder,” as defined in this sentence. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2(d) whether or not any Holder has elected to include securities in such registration, and shall promptly notify any Holder that has elected to include shares in such registration of such termination or withdrawal. The registration expenses of such withdrawn registration shall be borne by the denominator of which is 30Company.
Appears in 1 contract
Registration. (a) The Company’s Company shall file with the SEC a registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness statement on Form S-3 covering all of the Registration Statement, shall begin on the date hereof shares of Common Stock issued and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined by the counsel to the Company Purchasers pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent hereto within thirty (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b30) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, closing hereunder and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared cause such registration statement to become effective by the SEC as soon as practicable, but practicable thereafter. The Company agrees to keep such registration statement in no event later than effect until the closing earlier of (i) such date as all of the Fundamental Transaction shares of Common Stock covered by the registration statement have been resold or (“Initial Effectiveness Date”)ii) such time as all of the shares of Common Stock purchased hereunder by each Purchaser can be sold within a 90-day period without compliance with the registration requirements of the Securities Act pursuant to Rule 144 thereunder. By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness DateNotwithstanding anything else in this Section 7.2, the Company shall file with have the SECright, for a period not to exceed thirty (30) days in duration and upon written notice to each of the Purchasers, to prohibit the sale of the shares of Common Stock issued and sold to the Purchasers hereunder pursuant to a registration statement effected under this Section 7.2, in accordance with Securities Act Rule 424 (“Rule 424”)the event that the Company's Board of Directors, the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statementadvice of counsel, deems it necessary, in light of a pending or potential corporate event which has resulted in material nonpublic information not yet having been disseminated by the Company shall furnish a draft of it or otherwise included in such registration statement, to the Investor for its review and commentprohibit such sales until such information can be made public or included in such registration statement. The Company shall include Investor’s reasonable comments in within such thirty (30) days add any necessary disclosure to the Registration Statement given within 48 hours registration statement and notify the Purchasers that they are no longer prohibited from selling shares of Common Stock under such registration statement. With respect to any registration effected pursuant to this Section 7.2, the receipt thereof from the Company.parties further agree as follows:
(ca) During the Registration Period, subject to Section 2(d), the The Company shall, promptly, (i) shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to any such registration statement and the Registration Statement and related Prospectus to be filed pursuant to Rule 424, prospectus used in connection with such registration statement as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company securities covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementregistration statement.
(db) Beginning 60 days after effectiveness The Company shall furnish to the Purchasers such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed DelayAct, and (z) use its best efforts such other documents as they may reasonably request in order to terminate an Allowed Delay as promptly as practicablefacilitate the disposition of Registrable Securities owned by the Purchasers.
(ec) For any calendar month The Company shall bear all expenses other than underwriting discounts and commissions incurred in connection with such registration, filing or part of a month qualification, including (“Delay Period”without limitation) that the Registration Statement has not been declared effective by the Initial Effectiveness Dateall registration, orfiling and qualification fees, subject to Section 2(d)printer's and accounting fees, the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.fees and
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Pharmacyclics Inc)
Registration. (a) The Company’s Effectiveness Deadline Promptly following the Closing Date (but no later than 90 days following the Closing Date (the “Filing Deadline”)), the Partnership shall prepare and file a registration obligations stated statement under the Securities Act to permit the public resale of Registrable Securities from time to time as permitted by Rule 415 under the Securities Act (or any similar provision then in this Section 2effect), including its obligations, as set forth herein, with respect to file and obtain and maintain effectiveness all of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration PeriodStatement”). No The Registration Statement filed pursuant to this Section 2.01(a) shall register any security other than be on such appropriate registration form of the Registrable Securities.
(b) Within 10 days after Commission as shall be selected by the Company consummates a “Fundamental Transaction” (Partnership so long as defined in it permits the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale continuous offering of the Registrable Securities, and Securities pursuant to Rule 415 under the Company Securities Act (or any similar provision then in effect) at the then prevailing market prices. The Partnership shall use its commercially reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment to become effective on or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicablepracticable after the Filing Deadline. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Dateand requested by, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft Holders of it to the Investor for its review any and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all and shall include a plan of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition distribution agreed to by the seller parties, but which shall in any event contemplate distributions to the equity holders of the Purchasers and to third parties in connection with satisfying obligations for which Purchasers have indemnified the Partnership or sellers thereof as set forth in the Registration Statementits affiliates. In the case of amendments and supplements The Partnership shall use its commercially reasonable efforts to cause the Registration Statement required to be filed pursuant to this Agreement Section 2.01(a) to be effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities (the “Effectiveness Period”). The Registration Statement when effective (including pursuant the documents incorporated therein by reference) will comply as to this Section 2(c)) by reason form in all material respects with all applicable requirements of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which Act and the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for and will not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading (in the case of any prospectus contained in such Registration Statement, in the Prospectus in light of the circumstances under which they were a statement is made, not misleading (an “Allowed Delay”); provided, that . As soon as practicable following the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) date that the Registration Statement has not been declared effective by the Initial Effectiveness Datebecomes effective, or, subject to Section 2(d)but in any event within two Business Days of such date, the Partnership shall provide the Holders with written notice of the effectiveness of the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Statement.
Appears in 1 contract
Sources: Securities Agreement (American Midstream Partners, LP)
Registration. (a) The Company’s Shurgard shall prepare and file with the SEC by December 1, 2003, and use its best efforts to have declared effective as soon as practicable thereafter, a registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the statement (a “Registration Statement, shall begin on ”) providing for the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined resale 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate Holders of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale all of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company Shurgard shall use its best efforts to have keep the Registration Statement declared effective continuously effective, pursuant to the rules, regulations or instructions under the Securities Act applicable to the registration statement used by Shurgard for such Registration Statement, for such period (the “Effectiveness Period”) ending on the earlier of the date (i) that is one year after the date of the Closing Date, (ii) upon which all Registrable Securities have been registered and sold pursuant to the Registration Statement filed pursuant to this Agreement or (iii) upon which all of the Registrable Securities originally issued or issuable pursuant to the Purchase Agreement cease to meet the definition of Registrable Securities pursuant to Section 1.1. Notwithstanding the foregoing, if Shurgard files a Form S-3 shelf registration statement (“Shelf Registration”) with the SEC as soon as practicableprior to December 1, but in no event later than 2003, then Shurgard may delay the closing filing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day Registration Statement until 20 days following the Initial Effectiveness Date, date the Company Shelf Registration is declared effective.
(b) If a Holder shall file with the SEC, in accordance with propose to sell Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement, such Holder shall deliver to Shurgard a notice (a “Shareholder Sale Notice”) notifying Shurgard of the number of shares of Registrable Securities such Holder intends to sell in the ensuing 30 days, commencing five full business days following the Shareholder Sale Notice. Before filing The Shareholder Sale Notice shall be given in the Registration Statementform of an email or voicemail addressed to Shurgard’s General Counsel as follows: email, the Company shall furnish a draft of it to ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇; or voicemail, to ▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇. Shurgard may change these notice addresses by written notice to the Investor Holders as provided in Section 3.1. Unless otherwise specified in the Shareholder Sale Notice, such Shareholder Sale Notice shall be deemed to constitute a representation that any information previously supplied by such Holder expressly for its review and comment. The Company shall include Investor’s reasonable comments inclusion in the Registration Statement given within 48 hours (as the same may have been superseded by subsequent such information) is accurate as of the receipt thereof from date of such Shareholder Sale Notice. The Holder giving the CompanyShareholder Sale Notice may conduct the sales of Registrable Securities identified in the Shareholder Sale Notice during the prescribed 30-day period unless and until Shurgard exercises its rights under Section 1.2(c). After expiration of the 30-day period or after such Holder has sold all of the Registrable Securities identified in the Shareholder Sale Notice, such Holder may make further sales of Registrable Securities only after delivering an additional Shareholder Sale Notice to Shurgard as provided in this Section 1.2(b).
(c) During Notwithstanding any other provision of this Section 1.2, Shurgard shall have the Registration Periodright at any time to prohibit or suspend offers and sales of Registrable Securities whenever, subject to Section 2(d)and for so long as, in the Company shall, promptly, reasonable judgment of Shurgard after consultation with counsel (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including there exists a material development or a potential material development with respect to changes or involving Shurgard that Shurgard would be obligated to disclose in the “Selling Stockholders” Prospectus contained in the Registration Statement, which disclosure would in the good faith judgment of Shurgard be premature or otherwise inadvisable at such time and “Plan of Distribution” sectionswould have a material adverse effect upon Shurgard and its shareholders, as specified by the Investor; or (ii) cause the related Prospectus to be amended or supplemented by an event has occurred that makes any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to statement made in the Registration Statement or related Prospectus or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller document incorporated or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required deemed to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report incorporated therein by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days untrue in any 12-month period, material respect or which requires the Company may suspend the use making of any Prospectus included changes in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does so that it will not include an contain any untrue statement of a material fact required to be stated therein or necessary to make the statements therein not misleading or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); providedmisleading. To effect such suspension or prohibition, that Shurgard shall deliver a certificate in writing to the Company shall promptly Holders and, upon receipt of such certificate, the use of the Registration Statement and Prospectus will be deferred or suspended and will not recommence until (x) notify the Investor in writing such Holders’ receipt from Shurgard of copies of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, supplemented or amended Prospectus or (y) advise the Investor such Holders are advised in writing to cease all sales under such Registration Statement until by Shurgard that the end of the Allowed Delay, and (z) Prospectus may be used. Shurgard will use its best efforts to terminate an Allowed Delay ensure that the use of the Registration Statement and Prospectus may be resumed as promptly soon as practicablepracticable and, in the case of a pending development referred to in (i) above, as soon as, in the judgment of Shurgard, disclosure of the material information relating to such pending development would not have a materially adverse effect on Shurgard’s ability to consummate the transaction, if any, to which such development relates. Notwithstanding the foregoing, Shurgard will use best efforts to ensure that in any event the Holders shall have twenty trading days (prorated for partial fiscal quarters) available to sell Registrable Securities during each fiscal quarter (or portion thereof) during the Effectiveness Period.
(ed) For any calendar month or part All reasonable expenses, other than broker’s commissions and similar charges, and legal fees and disbursements of a month (“Delay Period”) that counsel for the selling Holders, incurred in connection with the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30borne by Shurgard.
Appears in 1 contract
Sources: Registration Rights Agreement (Shurgard Storage Centers Inc)
Registration. (a) The Company shall use its best efforts to prepare and file with the Commission one or more Registration Statements, covering the resale for an offering to be made on a continuous basis pursuant to Rule 415, (i) of the proportionate number of Shares of all Purchasers equal to 29% of the Company’s registration obligations stated in this Section 2then outstanding shares of Common Stock, including its obligationson or prior to the Filing Date, and (ii) for the maximum permissible number of remaining Shares the Company reasonably determines may be so registered at such time, as set forth hereinsoon as practicable from time to time during the Effectiveness Period. Each Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Shares on Form S-3, in which case such registration shall be on Form SB-2, or other applicable form in accordance with the Securities Act) and shall contain (except if otherwise required pursuant to file written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex A.
(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 within five (5) Business Days after 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 and obtain and maintain the effectiveness of the Registration Statement, Statement may be accelerated) and shall begin on use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of the date hereof and continue until that all Shares covered by the Registrable Securities Registration Statement have been sold or may be sold by non-affiliates without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Registration Effectiveness Period”). No In the event of a stock split, stock dividend or similar transaction with respect to the Shares, such Registration Statement shall register any security other than also cover, to the Registrable Securities.
extent allowable under the Securities Act and the rules promulgated thereunder (b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferredincluding Rule 416), the Company shall file a Registration Statement on Form S-3 (or, if the Company such indeterminate number of additional shares of Common Stock resulting therefrom. It is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, agreed and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), understood that the Company shall, promptlyfrom time to time, (i) prepare and be obligated to file with the SEC such amendments (including post-effective amendments) and supplements to the an additional Registration Statement and related Prospectus to be filed cover any Shares which are not registered for resale pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10pre-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the existing Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than ninety (90) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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, shall begin on Statement will not be “reviewed,” or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or otherwise ceased to be Registrable Securities or (y) the date on which the Registrable Securities may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s transfer agent to such effect (the “Registration Effectiveness Period”). No Upon the initial filing thereof, the Registration Statement shall register any security other than cover at least 100% of the shares of Common Stock for issuance upon the conversion of the Preferred Stock and 100% of the shares of Common Stock for issuance upon the exercise of the Warrants. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Boston Life Sciences Inc /De)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than one hundred and twenty (120) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement, shall begin on Statement will not be “reviewed,” or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) the date on which the Registrable Securities may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s transfer agent to such effect (the “Registration Effectiveness Period”). No Upon the initial filing thereof, the Registration Statement shall register any security other than cover at least 100% of the shares of Common Stock for issuance upon the conversion of the Preferred Stock and 100% of the shares of Common Stock for issuance upon the exercise of the Warrants. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Investor Rights Agreement (Genetronics Biomedical Corp)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a “shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its reasonable best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than ninety (90) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness accordance with Rule 12dl-2 promulgated under the Exchange Act within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement, shall begin on Statement will not be “reviewed,” or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) with respect to any Holder, such time as all Registrable Securities held by such Holder may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s transfer agent to such effect (the “Registration Effectiveness Period”). No Such Registration Statement also shall register any security cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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. The Registration Statement filed in accordance with Section 2 may include other than shares of the Company with respect to which registration rights have been granted, and may include shares of the Company being sold for the account of the Company; provided, however, that such inclusions do not adversely affect the registration of the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Investor Rights Agreement (Biosante Pharmaceuticals Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined by the counsel Prior to the Company pursuant 10th business day following the delivery of directions relating to a written opinion letter the Warrants by Plaintiffs' Lead Counsel (as that term is defined in the Court order dated June 6, 1996 relating to such effect, addressed and reasonably acceptable the Action) or the settlement administrator to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after , the Company consummates a “Fundamental Transaction” shall deliver to the Warrant Agent an adequate supply of Warrant Certificates executed on behalf of the Company as described in Section 1.3 hereof. The Warrant Certificates shall initially be registered in the names of those persons who are finally entitled as Authorized Claimants (as defined in the Stipulation) and plaintiffs' counsel in the Action, as directed by the Court to receive Warrant Certificates (the "Authorized Warrant Holders"). Each such Warrant Certificate shall have imprinted on its face the commencement date (the "Commencement Date"), which date shall be the 10th business day following the date of Designations delivery of directions by Plaintiffs' Lead Counsel or the settlement administrator to the Company of a list containing the names of the Authorized Warrant Holders and the number of Warrants to be issued to each. On or prior to the Commencement Date, the Warrant Agent shall have mailed or caused to have been mailed such Warrant Certificates to the Authorized Warrant Holders. The Warrant Agent shall maintain books for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale transfer and registration of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental TransactionWarrant Certificates in accordance with its regular practice. The Registration Statement (and any amendment or supplement) Warrant Certificates shall contain “Selling Stockholders” and “Plan of Distribution” sections, be registered in a Warrant Register as specified by Investorthey are issued. The Company and the Warrant Agent shall use its best efforts be entitled to have treat the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing registered owner(s) of the Fundamental Transaction Warrant Certificates (“Initial Effectiveness Date”the "Holder(s). By 9:30 a.m., New York time, ") as the owner(s) in fact thereof (notwithstanding any notation of ownership or other writing on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified Warrant Certificates made by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more anyone other than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that Warrant Agent), for the Registration Statement or Prospectus does not include an untrue statement purpose of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinany exercise thereof and for all other purposes, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that and neither the Company nor the Warrant Agent shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose be affected by any notice to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicablecontrary.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, Company shall as set forth herein, to soon as reasonably practicable prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement required hereunder shall be on Form S-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-1, in which case the Registration shall be on another appropriate form in accordance herewith). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its best efforts 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 not later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of: (i) the date when all Registrable Securities covered by the Registration Statement have been sold or sold, (ii) when all Registrable Securities covered by the Registration Statement may be sold without any volume restrictions pursuant to Rule 144144(b)(i) promulgated under the Securities Act, as determined by and (iii) one year from the counsel to date of issuance of the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent applicable Registrable Securities (the “Registration Effectiveness Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after If for any reason the Company consummates a “Fundamental Transaction” Commission does not permit all of the Shares to be included in the Registration Statement filed pursuant to Section 2(a), then the Registrable Securities that are included in such offering shall be allocated among the Holders in proportion (as defined nearly as practicable) to the number of Registrable Securities owned by each Holder, or in such other proportions as shall mutually be agreed to by all such Holders. To facilitate the Certificate allocation of Designations for shares in accordance with the Convertible Preferred)above provisions, the Company shall file may round the number of shares allocated to any Holder to the nearest 100 shares. If for any reason the Commission does not permit all of the Shares to be included in the Registration Statement filed pursuant to Section 2(a) or for any other reason any Registrable Securities are not then included in a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3filed under this Agreement, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause prepare and file as soon as possible after the registration statement date on which such filing may be made an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be declared effective made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall contain (except if otherwise directed by the closing of Holders) the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, attached hereto as specified by Investor. Annex A. The Company shall use its best efforts to have the cause each such Registration Statement to be declared effective by under the SEC Securities Act as soon as practicablepossible but, but in any event, no event later than its Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the closing Securities Act during its entire Effectiveness Period.
(c) Notwithstanding anything to the contrary contained in this Agreement, in the event the staff of the Fundamental Transaction Commission (the “Initial Effectiveness DateStaff”) or the Commission requires any Holder seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Holder does not consent to being so named as an underwriter in such Registration Statement, then in each such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Holder, until such time as the Staff or the Commission does not require such identification or until such Holder accepts such identification and the manner thereof. In the event of any reduction pursuant to this Section 2(c), no Holder shall have any claim against the Company as a result of such reduction. In the event of any reduction in Registrable Securities pursuant to this Section 2(c), an affected Holder shall have the right to require, upon delivery of a written request to the Company signed by the Holder, the Company to file a registration statement within 30 days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the Commission) for re-sale by such Holder in a manner acceptable to such Holder, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements hereunder, in each case until the earlier of such time as: (i) all Registrable Securities held by such Holder have been registered pursuant to an effective Registration Statement in a manner acceptable to such Holder or (ii) the Registrable Securities may be resold by such Holder without restriction (including volume limitations) pursuant to Rule 144(b)(i) of the Securities Act (taking account of any Staff position with respect to “affiliate” status) or (iii) one year from the date of issuance of the applicable Registrable Securities or (iv) the Holder agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to Holder as to all Registrable Securities held by such Holder and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by a Holder multiple times and with respect to limited amounts of Registrable Securities in order to permit the re-sale thereof by such Holder as contemplated above).
(d) By 9:30 a.m., New York time, 5:30 p.m. on the Trading Day immediately following the Initial Effectiveness DateEffective Date of each Registration Statement, the Company shall file with the SEC, Commission in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. Mandatory Registration. The Company shall prepare, and, on or prior to the ----------------------- earlier of (ai) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on forty-five (45) days from the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” of Closing (as defined in the Certificate ---- Securities Purchase Agreement) and (ii) five (5) business days from the resolution of Designations for all SEC comments with respect to the Convertible PreferredCompany's pending registration statement on Form S-1 (the "Filing Date"), file with the Company shall file SEC a Registration Statement on Form S-3 S-1 (or, if the Company Form S-1 is ineligible not then available, on such form of Registration Statement as is then available to file on Form S-3, then on Form S-1) with respect to Investor’s resale effect a registration of the Registrable Securities, subject to the consent of the Initial Investors, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities underlying the Debentures and Warrants issued or issuable pursuant to the Securities Purchase Agreement, which Registration Statement, to the extent allowable under the 1933 Act and the Company rules and regulations promulgated thereunder (including Rule 416), shall use reasonable best efforts state that such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon conversion of or otherwise pursuant to cause the registration statement to be declared effective by the closing Debentures and exercise of the Fundamental TransactionWarrants to prevent dilution resulting from stock splits, stock dividends or similar transactions. The number of shares of Common Stock initially included in such Registration Statement shall be no less than an amount equal to two (2) times the sum of the number of Conversion Shares that are then issuable upon conversion of the Debentures and Additional Debentures (based on the Variable Conversion Price as would then be in effect and assuming the Variable Conversion Price is the Conversion Price at such time), including, but not limited to, the number of Warrant Shares that are then issuable upon exercise of the Warrants, without regard to any amendment limitation on the Investor's ability to convert the Debentures or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorexercise the Warrants. The Company shall use its best efforts to have acknowledges that the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing number of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus shares initially included in the Registration Statement if the Company determines in represents a good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion estimate of the Company, in the best interests maximum number of shares issuable upon conversion of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case Debentures and upon exercise of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableWarrants.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Imaging Technologies Corp/Ca)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) on or prior to the Filing Deadline in respect of the initial Registration Statement, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) with or any successor form thereto covering the resale by the Investor of Registrable Securities, (ii) on or prior to the Filing Deadline in respect to Investor’s resale of the Option Debenture and Option Warrant, prepare and file with the SEC an registration Registration Statement on Form S-3 (or, if the Company is not then eligible, on Form S-1) or any successor form thereto covering the resale by the Investor of Registrable Securities, and (ii) on or prior to the Company shall use reasonable best efforts to cause the registration statement to be declared effective 30th calendar day following receipt of each written notice by the closing of Investor (a “Demand Notice”) delivered pursuant to the Fundamental Transaction. The terms hereof, prepare and file an additional Registration Statement (and covering the resale by the Investor of Registrable Securities not covered by the initial Registration Statement or any amendment or supplement) subsequent Registration Statement. Each Registration Statement prepared pursuant hereto shall register for resale at least the number of shares of Common Stock equal to the Required Registration Amount as of date the Registration Statement is initially filed with the SEC. Each Registration Statement shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York time, time on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company. For the purposes hereof, the Investor shall be entitled to deliver a Demand Notice to the Company at any time during the Registration Period if at such time (i) no Registration Statement is then in effect which the Investor may use to resell Registrable Securities, or (ii) a Registration Statement is effective, but the Holder has resold substantially all of the shares of Common Stock registered on such Registration Statement. In addition, the Investor may deliver a Demand Notice to the Company at any time during the Registration Period during which (i) the Company does not have a class of securities listed, or approved for listing, on a national securities exchange registered pursuant to Section 6 of the Exchange Act, or (ii) Rule 144, as amended, would not allow the “tacking” of the holding period of the Convertible Debenture onto the holding period of the Conversion Shares issuable upon conversion thereof.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, shall (i) promptly prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement and related the Prospectus used in connection with a Registration Statement, which Prospectus is to be filed pursuant to Rule 424424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including (ii) prepare and file with respect the SEC additional Registration Statements in order to changes register for resale under the Securities Act all of the Registrable Securities in accordance with the “Selling Stockholders” and “Plan terms of Distribution” sections, as specified by the Investorthis Agreement; (iiiii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and), and as so supplemented or amended, amended to be filed pursuant to Rule 424; (iiiiv) respond as promptly as reasonably possible to any comments received from the SEC with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to a Registration Statement (provided that the Registration StatementCompany may excise any information contained therein which would constitute material non-public information as to any Investor which has not executed a confidentiality agreement with the Company); and (ivv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the such Registration Statement. In the case of amendments and supplements to the a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. Zoltek will use commercially reasonable efforts to prepare and ------------ file a registration statement to cover all shares of Common Stock issuable under the Additional Warrants and the Registrable Securities issued to the Lenders in July 2006 and October 2006 pursuant to the September Loan Agreement (a) The Company’s registration the "Additional Registration Statement"). Such Additional Registration Statement shall constitute a "Registration Statement" under the September Registration Rights Agreement, and shall be subject to all the rights and obligations stated in this Section 2, including its obligations, as set forth herein, of and upon each of Zoltek and the "Lenders" thereunder. With respect to file and obtain and maintain effectiveness of the Additional Registration Statement, as contemplated by Section 2(b) of the September Registration Rights Agreement, the Filing Date shall begin on be the 20th calendar day following the Closing Date. The calculation of the Effectiveness Date with respect to the Additional Registration Statement contemplated by Section 2(b) of the September Registration Rights Agreement shall be the earlier of: (i) the 90th day following the Closing Date; provided, however, that, if the -------- ------- Commission reviews and has written comments to the filed Registration Statement that would require the filing of a pre-effective amendment thereto with the Commission, then the Effectiveness Date under this clause (i) shall be the 120th day following the date hereof and continue until all (ii) the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the fifth Trading Day following the Initial Effectiveness Date, date on which Zoltek is notified by the Company shall file with Commission that the SECinitial Registration Statement will not be reviewed or is no longer subject to further review and comments. Notwithstanding any provision of Section 2(c) of the September Registration Rights Agreement to the contrary, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft event Zoltek breaches any of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC obligations with respect to the Additional Registration Statement under this Section 3 or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and September Registration Rights Agreement, Zoltek shall issue to the SEC relating Lenders an amount of unregistered Common Stock equal to 35% of the total number of shares of Common Stock into which the New Warrants and the convertible notes and warrants originally issued to the Registration Statement; Lenders in July 2006 and (iv) comply with the provisions of the Securities Act with respect October 2006 pursuant to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time September Loan Agreement would be convertible or exercisable, as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementmay be.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the Registration Statement, Statement that have been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to an exemption under the Securities Act (including Rule 144), 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 “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall shall, on or prior to the Filing Deadline, prepare and file with the SEC a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) with respect to Investor’s covering the resale by the Investor of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Each Registration Statement (and any amendment or supplement) prepared pursuant hereto shall register for resale at least the number of shares of Common Stock equal to the Required Registration Amount as of date the Registration Statement is initially filed with the SEC. Each Registration Statement shall contain the “Selling Stockholders” and “Plan of Distribution” sections, sections in substantially the form attached hereto as specified by Investor. Exhibit A and contain all the required disclosures set forth on Exhibit B. The Company shall use its best efforts to have the each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day date following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 twenty-four (24) hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until all the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the SEPA if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 S-1 (or, if the Company is ineligible to file then eligible, on Form S-3) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with applicable SEC rules, then on Form S-1) with respect regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its commercially reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this To the extent that a Registration Statement filed pursuant to Section 22(b) or a Shelf Registration Statement is not available to effect the proposed transaction, including each Investor may request that the Company register under the Securities Act all or any portion of its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or▇-▇, if the Company is ineligible to file on Form S-3, then on Form S-1) ▇-▇ or any successor form thereto with respect to Investor’s resale a underwritten public offering of Registrable Securities (each, a “Long-Form Registration”). Each request for a Long-Form Registration shall specify the number of Registrable Securities requested to be included in the Long-Form Registration. Upon receipt of any such request, the Company shall promptly (but in no event later than 10 days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have 10 days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall prepare and file with (or confidentially submit to) the Commission a Registration Statement on Form ▇-▇, ▇-▇ or any successor form thereto covering all of the Registrable Securities, 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 the Company shall use reasonable its best efforts to cause the registration statement such Registration Statement to be declared effective by the closing 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 Fundamental TransactionRegistrable Securities held by the Investors from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2(b) and shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective as soon as practicable after the filing thereof, but in no event later than 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 (and any amendment or supplementfiled 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 415 under the Securities Act or any successor rule or provision similar thereto adopted by the Commission, covering such Registrable Securities, and shall contain “Selling Stockholders” a Prospectus in such form as to permit any Investor to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor rule or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 2(b) shall provide for the sale or resale pursuant to any method or combination of methods legally available to, and “Plan requested by, the Investors. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to Section 2(b) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement or Shelf Registration Statement is continuously available, for the resale of Distribution” sectionsall the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 2(b), as specified by Investorbut in any event within one (1) business day of such date, the Company shall notify the Investors of the effectiveness of such Registration Statement. If, after the filing such Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Registration Statement, the Company shall amend such Registration Statement to cover such additional Registrable Securities.
(c) The Company shall use its best efforts to have qualify and remain qualified to register the offer and sale of securities under the Securities Act pursuant to a Registration Statement declared effective by the SEC as on Form ▇-▇, ▇-▇ or any successor form thereto. As soon as practicablepracticable after the date hereof, but in no event not later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Target Filing Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with (or confidentially submit to) the SEC such amendments (including post-effective amendments) and supplements to the Commission a Registration Statement and related Prospectus on Form ▇-▇, ▇-▇ or the then appropriate form for an offering to be filed made on a delayed or continuous basis pursuant to Rule 424, as may be necessary to keep such 415 under the Securities Act or any successor rule thereto (a “Shelf Registration Statement effective at Statement”) that covers all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus Registrable Securities then outstanding for an offering to be amended made on a delayed or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed continuous basis pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of 415 under the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
successor rule thereto (da “Shelf Registration”) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or and (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the cause such Shelf Registration Statement has not been to be declared effective by the Initial Effectiveness DateCommission as soon as practicable thereafter. In addition, or, subject the Company shall use its best efforts to cause a Shelf Registration Statement filed pursuant to Section 2(d)2(c) to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Shelf Registration Statement is available or, if not effective available, that another Shelf Registration Statement (if the Company is eligible to file a Shelf Registration Statement) or other Registration Statement (if the Prospectus canCompany is not so eligible) is continuously available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be used or has not been filed Registrable Securities. For purposes hereof, “Target Filing Date” shall mean the date which is 30 days after the Company becomes qualified to register the offer and sale of securities under the Securities Act pursuant to Rule 424a Shelf Registration Statement. If, after the filing of a Shelf Registration Statement, a holder of Registrable Securities requests registration under the Securities Act of additional Registrable Securities pursuant to such Shelf Registration, the Company shallshall amend such Shelf Registration Statement to cover such additional Registrable Securities. At such time as the Company shall have qualified for the use of a Registration Statement on Form ▇-▇, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction▇-▇ or any successor form thereto, the numerator holders of which Registrable Securities shall be have the right to request an unlimited number of registrations under the Securities Act of all or any portion of their Registrable Securities pursuant to a Registration Statement on Form ▇-▇, ▇-▇ or any similar short-form Registration Statement (each, a “Short-Form Registration” and, collectively with each Long-Form Registration and Shelf Registration (as defined below), a “Demand Registration”). Each request for a Short-Form Registration shall specify the number of Registrable Securities requested to be included in the Short-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 Delay Period, the holders thereof have requested to be included in such Short-Form Registration within 30 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 denominator of which is 30Commission as soon as practicable thereafter.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to each Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness of with the Commission the Registration Statement, shall begin on Statement covering the date hereof and continue until resale of all of the Registrable Securities 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 the Registration shall be on another appropriate form in accordance herewith). The Registration Statement required hereunder shall contain (except if otherwise directed by the Holders) the "Plan of Distribution" attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its best efforts 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 not later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all Registrable Securities covered by the Registration Statement have been sold or may be sold (assuming for such purposes that the Holder shall elect to utilize the cashless or net exercise provisions under the Warrants) without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s 's transfer agent and the affected Holders (the “Registration "Effectiveness Period”"). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after If for any reason the Company consummates a “Fundamental Transaction” (as defined Commission does not permit all of the Shares and all Warrant Shares to be included in the Certificate of Designations for the Convertible PreferredRegistration 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 a 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 on Form S-3 (or, if covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the all Registrable Securities, Securities not already covered by an existing and the Company shall use reasonable best efforts to cause the registration statement effective Registration Statement for an offering to be declared effective made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall contain (except if otherwise directed by the closing of Holders) the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “"Plan of Distribution” sections, " attached hereto as specified by Investor. Annex A. The Company shall use its best efforts to have the cause each such Registration Statement to be declared effective by under the SEC Securities Act as soon as practicablepossible but, but in any event, no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial its Effectiveness Date, the Company and shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for use its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary best efforts to keep such Registration Statement continuously effective at all times 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 PeriodStatement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) hereof, including with respect the Company shall not be deemed to changes in the “Selling Stockholders” and “Plan of Distribution” sectionshave satisfied this clause (i)), as specified by the Investor; or (ii) cause prior to the related Prospectus 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 10 days after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration Statement to be amended declared effective, or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the a Registration Statement filed or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed hereunder is not declared effective by the Commission on or before its Effectiveness Date, or (iv) during the Effectiveness Period, a Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any and all such cases for more than an aggregate of 20 Trading Days during such Effectiveness Period (which need not be consecutive Trading Days)(any such failure or breach being referred to as an "Event," and for purposes of clause (i) or (iii) the date on which such Event occurs, or for purposes of clause (ii) the date which such 10 calendar days is exceeded, or for purposes of clause (iv) the date on which such 20 Trading Days is exceeded being referred to as "Event Date"), then in addition to any other rights the Holders may have hereunder or under applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder pursuant to this Agreement the Purchase Agreement; and (including y) on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section 2(c)) by reason of in full within seven days after the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actdate 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 incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC apply on the same day on which the Exchange Act report is filed which created the requirement a daily pro-rata basis for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form any portion of a written opinionmonth prior to the cure of an Event, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, except in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicablefirst Event Date.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, including its obligations, as set forth herein, obligation to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the Registration Statement, Statement that have been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may permanently be sold without any restrictions pursuant to Rule 144, 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 “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after On or prior to the Company consummates a “Fundamental Transaction” (as defined in Filing Deadline, prepare and file with the Certificate of Designations for the Convertible Preferred), the Company shall file SEC a Registration Statement on Form S-3 S-1 or SB-2 (or, if the Company is ineligible to file then eligible, on Form S-3, then on Form S-1) with respect to Investor’s covering the resale by the Investor of all of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Each Registration Statement (and any amendment or supplement) prepared pursuant hereto shall register for resale at least the number of shares of Common Stock equal to the Required Registration Amount as of date the Registration Statement is initially filed with the SEC. Each Registration Statement shall contain the “Selling Stockholders” and “Plan of Distribution” sections, sections in substantially the form attached hereto as specified by Investor. Exhibit A and contain all the required disclosures set forth on Exhibit B. The Company shall use its best efforts to have the each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Galaxy Next Generation, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to each Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-1 (except if the Company later becomes eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on such other available form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such H▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold sold, thereunder or pursuant to Rule 144, or (ii) may be sold without any volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Transfer Agent and the affected Holders (the “Registration Effectiveness Period”). No The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall register any security other than immediately notify the Registrable SecuritiesHolders via e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) Within 10 days after Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company consummates that all of the Registrable Securities cannot, as a “Fundamental Transaction” (result of the application of Rule 415, be registered for resale as defined in a secondary offering on a single registration statement, the Certificate Company agrees to promptly inform each of Designations the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-1 or such other form available to register for resale the Convertible PreferredRegistrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-1 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall file a Registration Statement on Form S-3 be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(orc) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company is ineligible used diligent efforts to file on Form S-3advocate with the Commission for the registration of all or a greater portion of Registrable Securities), then on Form S-1) with respect unless otherwise directed in writing by a Holder as to Investor’s resale of the its Registrable Securities, and the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
a. First, the Company shall use reasonable best efforts to cause the registration statement reduce or eliminate any securities to be declared effective included other than Registrable Securities;
b. Second, the Company shall reduce Registrable Securities represented by Common Warrant Shares (applied, in the closing case that some Common Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Common Warrant Shares held by such Holders); and
c. Third, the Fundamental TransactionCompany shall reduce Registrable Securities represented by Shares and Pre-Funded Warrants (applied, in the case that some Shares and Pre-Funded Warrants may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares and Pre-Funded Warrants held by such Holders). The In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such H▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sectionsin accordance with the foregoing, as specified by Investor. The the Company shall will use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SECCommission, in accordance with Securities Act Rule 424 (“Rule 424”), as promptly as allowed by the final Prospectus to be used in connection with sales pursuant Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement. Before , as amended.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein or the Company subsequently withdraws the filing of the Registration Statement, the Company shall furnish be deemed to have not satisfied this clause (i) as of the Filing Date), or (ii) the Company fails to file with the Commission a draft request for acceleration of it a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Investor Securities Act, within five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, 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 ten (10) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for its review such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statemen, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and commentfor purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (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 the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 12% of the aggregate Subscription 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 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall include Investor’s reasonable comments in (i) register the resale 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 maintain the effectiveness of the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes then in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement effect until such time as all of such a Registration Statement on Form S-3 covering the Registrable Securities shall have has been disposed of in accordance with the intended methods of disposition declared effective by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementCommission.
(df) Beginning 60 days after effectiveness of Notwithstanding anything to the Registration Statementcontrary contained herein, upon in no event shall the advice of Company counsel in the form be permitted to name any Holder or affiliate of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in Holder as any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (underwriter without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableHolder.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Banzai International, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (unless otherwise directed by the Holders) substantially the "Plan of Distribution" attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its best 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 prior to the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or may be sold without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s 's transfer agent and the affected Holders (the “Registration "Effectiveness Period”"). No The Company shall immediately notify the Holders via facsimile of the effectiveness of the Registration Statement on the same day that the Company receives notification of the effectiveness from the Commission. Failure to so notify the Holder within 1 Trading Day of such notification shall register any security other than the Registrable Securitiesbe deemed an Event under Section 2(b).
(b) Within 10 days after If (subject to Section 6): (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company consummates files a “Fundamental Transaction” (Registration Statement without affording the Holders the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferredrequired by Section 3(a), 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 a Registration Statement on Form S-3 will not be "reviewed," or not subject to further review; or (or, if the Company is ineligible iii) prior to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall fails to file with a pre-effective amendment and otherwise respond in writing to comments made by the SECCommission in respect of such Registration Statement within 14 calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective; or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission by its Effectiveness Date; or (v) after the Effectiveness Date, in accordance with a Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities Act Rule 424 for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities for 10 consecutive calendar days but no more than an aggregate of 15 calendar days during any 12-month period (“Rule 424”which need not be consecutive Trading Days) (any such failure or breach being referred to as an "Event", and for purposes of clause (ii) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clause (iii) the date which such 14 calendar day period is exceeded, or for purposes of clause (v) the date on which such 10 or 15 calendar day period, as applicable, is exceeded being referred to as "Event Date"), then in addition to any other rights the final Prospectus to be used in connection with sales pursuant to Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the Registration Statement. Before filing applicable Event shall not have been cured by such date) until the Registration Statementapplicable Event is cured, the Company shall furnish pay to each Holder an amount in cash, as partial liquidated damages and not as a draft penalty, equal to 1.5% of it the outstanding principal of the Notes for any Registrable Securities then held by such Holder for the first 30 days (or part thereof) after the Event Date and an additional 1.5% for any subsequent 30-day period (or part thereof), thereafter. The maximum aggregate liquidated damages that shall be payable to a Holder under this Agreement shall be 10% of the remaining balance of aggregate Subscription Amount paid by such Holder pursuant to the Investor for its review and commentPurchase Agreement. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), If the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements fails to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by pay any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including partial liquidated damages pursuant to this Section 2(c)) by reason of in full within seven days after the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actdate payable, the Company shall incorporate will pay interest thereon at a rate of 20% per annum (or such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report lesser maximum amount that is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required permitted to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (xpaid by applicable law) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part portion of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal prior to the product obtained by multiplying $20,000 by a fraction, the numerator cure of which shall be the number of days in that Delay Period, and the denominator of which is 30an Event.
Appears in 1 contract
Sources: Registration Rights Agreement (New Century Companies Inc)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a "shelf" Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than sixty (60) The Company’s registration obligations stated days after the Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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, shall begin on Statement will not be "reviewed," or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) the date on which all Registrable Securities may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s 's transfer agent to such effect (the “Registration "Effectiveness Period”"). No Upon the initial filing thereof, the Registration Statement shall register any security other than cover at least 100% of the Shares and 110% of the shares of Common Stock for issuance upon the exercise of the Warrants. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold sell all of the Registrable Securities without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best commercially reasonable efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., am New York time, time on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable provide any comments in on the draft Registration Statement given to the Company within 48 hours two business days of receipt of the receipt thereof draft from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (FibroBiologics, Inc.)
Registration. No later than thirty (a30) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on days after the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 of this Agreement (the “Registration PeriodClosing Date”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall prepare and file with the SEC a Registration Statement on Form S-3 (or, if covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of all of the shares of Common Stock sold in the Common Stock Offering (the “Registrable Securities”) for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act. For purposes of this Agreement, and the Company shall use reasonable best efforts to cause the any substitute or replacement registration statement to be declared effective by shall mean the closing of the Fundamental TransactionRegistration Statement. The Registration Statement (and any amendment filed hereunder shall be on Form S-1 or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, such other form as specified by Investoris available to register for resale the Registrable Securities as a secondary offering. The Company shall use its best commercially reasonable efforts to have the cause such Registration Statement to be declared effective by under the SEC as soon as practicable, but in no event Securities Act not later than 180 days after the closing of the Fundamental Transaction (“Initial Effectiveness Closing Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s use its commercially reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary efforts to keep such Registration Statement continuously effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of under the Securities Act with respect to until the disposition of earliest of: (i) such time as all Registrable Securities of the Company covered by such Registration Statement until have been sold thereunder or pursuant to Rule 144, (ii) such time as after the expiration of the Lock Up Period and all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition covered by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the such Registration Statement required to may be filed sold without volume or manner-of-sale restrictions pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created Rule 144 and without the requirement for the Company to amend be in compliance with the current public information requirement under Rule 144, or supplement (iii) the Registration Statement.
five (d5) Beginning 60 days after effectiveness year anniversary of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month Closing Date (such period, the “Effectiveness Period”). The Company may suspend shall promptly notify each Investor of the use effectiveness of any Prospectus included in a Registration Statement. In the Registration Statement if event that, following the Company determines in good faith that such suspension is necessary to five (i5) delay year anniversary of the disclosure of material nonpublic information concerning the CompanyClosing Date, the disclosure Investors hold at least the lesser of which at the time is not(x) an aggregate of $500,000 of Registrable Securities and (y) 500,000 shares of Common Stock (subject to adjustment for any stock splits, in the good faith opinion stock dividends, recapitalizations and similar events), Palm may, provided that Palm remains an affiliate of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, request that the Company file a replacement Registration Statement for any such remaining Registrable Securities on the terms set forth in this Section 5, which the Company shall file within thirty (30) days after such request and use its commercially reasonable to cause to become effective as promptly as practicable after such filing, provided further that the Effectiveness Period for any such replacement Registration Statement shall not extend beyond the two (x2) notify the Investor in writing year anniversary of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under date when such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicablebecomes effective.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. As soon as reasonably practicable following the Closing Date (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other but not later than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible PreferredFiling Date), the Company shall prepare and file with the Commission a "shelf" Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or, or if such form is not available to the Company is ineligible on another form appropriate for such registration in accordance herewith). Subject to file on Form S-3Section 3(n) below, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have cause the Registration Statement to be declared effective by under the SEC as soon as practicable, but in no event Securities Act not later than the closing Effectiveness Deadline (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 after 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 and the effectiveness of the Fundamental Transaction Registration Statement may be accelerated) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (“Initial x) the date when all Registrable Securities covered by such Registration Statement have been sold or (y) with respect to any Holder, such time as all Registrable Securities held by such Holder may be sold without any restriction pursuant to Rule 144(k) (the "Effectiveness Date”Period"). By 9:30 a.m.Such Registration Statement also shall cover, New York timeto the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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. If, after the first filing of a Registration Statement under this Agreement, the Commission advises the Company that any Registrable Securities may not be included in such Registration Statement on the Trading Day following the Initial Effectiveness DateForm S-3 ("Delayed Securities"), then the Company shall file with the SEC, not be in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus breach of any provision of this Agreement or subject to be used in connection with sales liquidated damages pursuant to Section 7(e) or Section 7(f) for the failure to include such Delayed Securities in such Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the a Registration Statement and related Prospectus effecting the registration of the Delayed Securities as soon as reasonably practicable after it is permitted to be filed pursuant do so on Form S-3 under the Securities Act and the rules and regulations of the Commission. If the Company is not permitted to Rule 424register the Delayed Securities on Form S-3 such that the Registration Statement with respect to the Delayed Securities is effective prior to the first anniversary of the Closing Date, then Company shall effect the registration of the Delayed Securities no later than such first anniversary by preparing and filing a Registration Statement on any form as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all registration of such Registrable Delayed Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate become effective no later than such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementanniversary.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Investor Rights Agreement (Spectrum Pharmaceuticals Inc)
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.shall:
(bi) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred)expeditiously as practicable, the Company shall file cause to be filed a Registration Statement on Form S-3 and pursuant to Rule 415 under the Securities Act, as applicable, which Registration Statement shall permit resales of all Securities; provided that the Holders whose Securities are covered by the Registration Statement shall have provided the information required pursuant to Section 2.2(d); and
(or, if the Company is ineligible to file on Form S-3, then on Form S-1ii) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable its best efforts to cause the registration statement such Registration Statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement Commission by June 13, 1997.
(and any amendment or supplementb) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts may elect to have file the Registration Statement declared effective by the SEC as soon as practicable, but in no event later on a form other than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, Form S-3 if the Company shall file with determines that doing so would be in its best interests, so long as the SEC, in accordance with Securities Act Rule 424 Holders would receive at least the same rights of resale as would have been available if the Registration Statement were filed on Form S-3.
(“Rule 424”), the final Prospectus to be used in c) In connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft comply with all the provisions of it Section 2.3 below and shall use its reasonable best efforts to effect such registration to permit the resale of the Securities in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject pursuant to Section 2(d2.2(d)). Subject to Section 2.2(e), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary shall use its reasonable best efforts to keep such Registration Statement effective at all times during continuously effective, supplemented and amended to the Registration Period, including with respect extent necessary to changes in the “Selling Stockholders” and “Plan ensure that it is available for resales of Distribution” sections, as specified Securities by the Investor; (ii) cause Holders, and to ensure that it conforms with the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of two (2) and, years after the Effective Time or such longer period as so supplemented required by Section 2.2(e) or amended, to be filed such shorter period that will terminate when all the Securities covered by the Registration Statement have been sold pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or otherwise cease to be Restricted Securities. The Company shall be obligated to effect only one registration pursuant to this Agreement. Upon the occurrence of any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to event that would cause the Registration Statement required or the Prospectus contained therein (i) to contain a material misstatement or omission or (ii) not to be filed pursuant to effective and usable for resale of Securities during the period required by this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange ActAgreement, the Company shall incorporate file promptly an appropriate amendment to such report Registration Statement or the related Prospectus or any document incorporated therein by reference into reference, in the case of clause (i), correcting any such misstatement or omission, and, in the case of either clause (i) or (ii), use its reasonable best efforts to cause such amendment to be declared effective and such Registration Statement, if applicable, or Statement and the related Prospectus to become usable for its intended purpose(s) as soon as practicable thereafter. The Company shall file give each holder of Restricted Securities a copy of such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementamendment promptly after its filing.
(d) Beginning 60 days after effectiveness No Holder may include any of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included its Securities in the Registration Statement if pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 10 Business Days after receipt of a written request therefor, the information specified in Item 507 of Regulation S-K under the Securities Act and such other information as the Company may reasonably request for use in connection with the Registration Statement or Prospectus or preliminary Prospectus included therein and in any application to the NASD or Nasdaq. Each Holder as to which the Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
(e) Notwithstanding anything to the contrary contained herein, if (i) the Board determines in good faith that the registration and distribution of Securities (or the use of such suspension Registration Statement or the Prospectus contained therein) would interfere with any proposed or pending material corporate transaction involving the Company or any of its subsidiaries or would require premature disclosure thereof or would require the Company to disclose information that the Company has not otherwise made public and that the Company reasonably determines is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or not to disclose at such time, and (ii) amend the Company notifies the Holders in writing not later than five (5) Business Days after such determination (such notice shall be a "Blackout Notice"), the Company may (A) postpone the filing of the Registration Statement, or supplement (B) allow the Registration Statement to fail to be effective and usable or Related Prospectus so elect that the Registration Statement or Prospectus does shall not include an untrue statement be usable for a reasonable period of time, but not in excess of 90 days (a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”"Blackout Period"); provided, however, that the Company aggregate number of days included in all Blackout Periods shall promptly (x) notify not exceed 90 during any consecutive 12 months and shall not exceed 180 during the Investor period specified in writing of the commencement (and the terminationSection 2.2(c) of an Allowed Delaythis Agreement; and provided, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delayfurther, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject period referred to in Section 2(d), 2.2(c) during which the Registration Statement is required to be effective and usable shall be extended by the aggregate number of days during which the Registration Statement was not effective or the Prospectus cannot be used or has not been filed usable pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30foregoing provisions.
Appears in 1 contract
Sources: Registration Rights Agreement (Pacific Aerospace & Electronics Inc)
Registration. (a) The Company’s Buyer shall file a registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin statement on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions Form S-1 pursuant to Rule 144, as determined by 415 of the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Securities Act (the “Registration PeriodStatement”). No ) to register the Buyer Common Stock comprising the Stock Consideration within fifteen (15) days of the Closing (it being understood that the Registration Statement shall register any security other than be filed notwithstanding the Registrable Securities.
fact the Financial Statements shall be subsequently provided to Buyer by Seller) (bthe “Filing Date”) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective within sixty (60) days of the Filing Date, provided, such sixty (60) day period shall be extended for each additional day for each day that Seller fails to provide the Financial Statements in accordance to Section 6.6(e). Seller shall promptly provide all information requested by Buyer required for the filing of the registration statement and any delays caused by Seller shall extend the aforementioned timeframes for each day after two (2) Business Days that Seller fails to provide the requiring information following written notice from Buyer. Buyer shall maintain the effectiveness of the Registration Statement until all of the Stock Consideration registered under the Registration Statement has been sold or may be sold without registration without volume or manner-of-sale limits under Rule 144. If pursuant to Rule 415 of the Securities Act, the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, shall impose a limitation on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, number of shares of Buyer Common Stock which may be included in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, then Buyer shall be obligated to include in such Registration Statement only such limited portion of the Company shall furnish a draft Stock Consideration.
(b) In connection with the filing of it any Registration Statement, Buyer agrees to make any other filings with the SEC required to be made prior to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in effectiveness of the Registration Statement given within 48 hours Statement, including, if required, a Current Report on Form 8-K with respect to the Closing and acquisition of the receipt thereof from Purchased Assets and all financial statements required to be included therein. Buyer shall use its best efforts to make any such other filings as soon as practicable following the CompanyClosing.
(c) During Buyer shall notify the Seller of the effectiveness of the Registration PeriodStatement and shall furnish to the Seller, subject to Section 2(dwithout charge, such number of copies of the Registration Statement (including any amendments, supplements and exhibits), the Company shall, prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Registration Statement as the Seller may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Registration Statement.
(d) Buyer shall as promptly as reasonably practicable notify the Seller of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement with respect to the Seller’s Registrable Securities or the receipt of notice of the initiation of any proceedings for that purpose. Buyer shall respond promptly, but no later than five (i5) days after its receipt of an issuance from the SEC with respect of any issued stop order suspending the effectiveness of the Registration Statement. Buyer shall use its best efforts to obtain the withdrawal of any order suspending the effectiveness of such a Registration Statement at the earliest possible moment. Buyer shall promptly notify the Seller of any request by the SEC for any amendment or supplement to, or additional information in connection with, the Registration Statement (or prospectus relating thereto). Buyer shall promptly, but no later than five (5) days after the Closing Date notify the Seller of the filing of the Registration Statement or any prospectus, amendment or supplement related thereto or any post-effective amendment to the Registration Statement and the effectiveness of any post-effective amendment.
(e) Subject to the terms of this Section 6.1, Buyer shall promptly prepare and file with the SEC from time to time such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, prospectus used in connection therewith as may be necessary to keep such the Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities of until the Company covered time period specified in Section 6.1(a). Buyer shall include or incorporate by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth reference in the Registration Statement such plan of distribution as the Seller shall reasonably request prior to the effectiveness thereof.
(f) After the effectiveness of the Registration Statement, Buyer shall furnish to the Seller a copy of the prospectus included or incorporated by reference therein. In If Buyer has delivered a prospectus to the case Seller and after having done so the prospectus is amended or supplemented to comply with the requirements of amendments the Securities Act, Buyer shall promptly notify the Seller and supplements the Seller shall immediately cease making offers or sales of shares under the previously delivered prospectus. Buyer shall promptly provide the Seller with revised or supplemented prospectuses and, following receipt of the revised or supplemented prospectuses, if a prospectus related to the Registration Statement is required at that time to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report delivered under the Securities Exchange Act, the Company Seller shall incorporate such report by reference into be free, subject to the Registration Statementterms of this Section 6.1, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement resume making offers and sales under the Registration Statement.
(dg) Beginning 60 days after effectiveness Buyer shall, in connection with the filing of the Registration StatementStatement hereunder, upon file such documents as may be necessary to register or qualify the advice Registrable Securities under the securities or “blue sky” laws of Company counsel such states as the Seller may reasonably request, and Buyer shall use its best efforts to cause such filings to become effective in a timely manner; provided, however, that Buyer shall not be obligated to qualify as a foreign corporation to do business under the form laws of a written opinion, for any such state in which it is not more than 20 consecutive days then qualified or for a total to file any general consent to service of not more than 30 days process in any 12-month periodsuch state or subject itself to general taxation in any such jurisdiction or provide any undertakings that cause the Buyer undue expense or burden.
(h) Buyer, only for so long as it has a class of securities registered under Section 12 of the Company may suspend Exchange Act, shall use its best efforts to continue the use listing or trading privileges of the shares of Buyer Common Stock to be issued hereunder on the principal national securities exchange or other market (currently OTCQB) on which shares of Buyer Common Stock are then listed or quoted, if any.
(i) Buyer shall pay all expenses incurred by it in complying with its obligations under this Section 6.1, including registration and filing fees, listing fees, printing expenses, messenger and delivery expenses. The Seller shall pay all expenses incurred by the Seller in connection with the disposition of its Registrable Securities, including any broker’s fees or commissions, selling expenses, messenger and delivery expenses, and fees and expenses of any Prospectus included in counsel retained by the Seller.
(j) Unless and until the Registration Statement if has been declared effective, Buyer hereby covenants not to register (including, for this purpose, a registration effected by the Company determines in good faith that for stockholders other than the Seller) any of its Common Stock under the Securities Act.
(k) Buyer agrees to indemnify and hold harmless the Seller and the Seller’s directors, officers and each person, if any against any losses, claims, damages, expenses or liabilities to which the Seller or other such suspension is necessary to (i) delay the disclosure Person may become subject by reason of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company any untrue statement or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an alleged untrue statement of a material fact contained in the Registration Statement or omit any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements thereintherein not misleading, except insofar as such losses, claims, damages, expenses or liabilities arise out of or are based upon information furnished in writing to Buyer by or on behalf of the Seller expressly for use in the case Registration Statement. Buyer shall have the right to assume the defense and settlement of any claim or suit for which Buyer may be responsible for indemnification under this Section 6.1 with counsel reasonably satisfactory to the Prospectus indemnified party. The indemnified party may participate in light of any such defense or settlement, but Buyer shall not be liable to such indemnified party for any legal or other expenses incurred by such indemnified party in connection with the circumstances under which they were made, not misleading (an “Allowed Delay”)defense thereof; provided, however, that the Company shall promptly (x) notify if Buyer fails to take reasonable steps necessary to defend in good faith the Investor action or proceeding within ten (10) Business Days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; or (y) if such indemnified party who is a defendant in any action or proceeding which is also brought against Buyer shall have reasonably concluded, based on the advice of counsel, that there may be one or more legal defenses available to such indemnified party which are not available to Buyer; or (z) if representation of both parties by the same counsel is impermissible under applicable standards of professional conduct, then, in any such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction) and Buyer shall be liable for any reasonable expenses therefor. The Seller, with respect to the shares that are included in the Registration Statement agrees to indemnify and hold harmless Buyer and its directors, officers and each Person, if any, that controls Buyer within the meaning of the Securities Act, against any losses, claims, damages, expenses or liabilities to which Buyer or other such Buyer may become subject by reason of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or 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, but only insofar as such losses, claims, damages, expenses or liabilities arise out of or are based upon information furnished in writing to Buyer by or on behalf of the commencement (and Seller expressly for use in the termination) of an Allowed DelayRegistration Statement. No indemnifying party shall, but shall not (without the prior written consent of the Investor) disclose indemnified party, effect the settlement or compromise of, or consent to the Investor entry of any material nonpublic information giving rise judgment with respect to, any action or claim in respect of which indemnification or contribution may be sought hereunder unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(l) If the indemnification provided for in Section 6.1(k) is unavailable to an Allowed Delayindemnified party with respect to any losses, claims, damages, expenses or liabilities referred to therein or is insufficient to hold the indemnified party harmless as contemplated therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities as well as any other relevant equitable considerations. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Buyer and the Seller agree that it would not be just and equitable if contribution pursuant to this Section 6.1(l) were determined by pro rata allocation or by any other method of allocation that fails to take account of the equitable considerations referred to above. The Seller shall not be required to contribute any amount in excess of the amount by which the net proceeds to the Seller from the sale of the Seller’s Registrable Securities pursuant to the Registration Statement exceeds the amount of any damages which the Seller has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(m) Buyer covenants that, for so long as Buyer has a class of securities registered under Section 12 of the Exchange Act, it will file any reports required to be filed by it under the Securities Act and the Exchange Act.
(n) Seller may not, directly or indirectly engage in a short sale (as defined in 17 CFR 242.200) in any Buyer Common Stock or enter into hedging or similar transactions with the Buyer Common Stock until all of the Stock Consideration has been sold.
(o) If, at any time, (yi) advise the Investor Registration Statement that is complete in all respects (except for any Financial Statement required to be provided by Seller under Section 6.6(e) that have not been provided by Seller to Buyer) is not filed on or prior to the Filing Date, (ii) prior to the effective date of the Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to cease all sales under comments made by the Commission in respect of such Registration Statement until within ten Business Days after the end receipt of comments from the Allowed Delay, and Commission or (ziii) use its best efforts the Company fails to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part file with the Commission a request for acceleration of a month (“Delay Period”) that the Registration Statement has not been declared effective within five Business Days of the date that the Company is notified in writing by the Initial Effectiveness Date, or, Commission that such Registration Statement will not be “reviewed” or will not be subject to Section 2(d)further review, the Registration Statement Buyer shall pay to Seller, in by wire transfer of immediately available funds to an account designated by Seller, $1,000 for each Business Day that exceeds the aforementioned time periods; provided, however, no payment shall accrue if the delay is not effective caused by Seller’s or Seller’s auditor’s failure to respond to comments from the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal Commission related to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Financial Statements.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities have been sold On or may be sold without any restrictions pursuant to Rule 144, as determined by the counsel prior to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Filing Date, the Company shall prepare and file with the SECCommission the Registration Statement covering the resale of the 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 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 in accordance with Securities Act Rule 424 (“Rule 424”herewith), the final Prospectus . Not less than ten business days prior to be used in connection with sales pursuant to the Registration Statement. Before filing of the Registration Statement, the Company shall furnish provide each Holder with a draft copy of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject proposed to Section 2(d), the Company shall, promptly, (i) prepare be filed and file shall consider all appropriate comments that are timely provided by such Holder with the SEC such amendments (including post-effective amendments) and supplements respect to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject Statement. Subject to the terms of this Agreement, the Company shall use its commercially 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 in any event prior to the Effectiveness Date, and shall use its commercially reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of (i) andall Registrable Securities covered by the Registration Statement have been sold, or (ii) subject to the next successive sentence, (A) Hercules, together with any of its affiliates, owns less than 10% of the issued and outstanding Common Stock and (B) the Registrable Securities may be sold free of any restrictions under Rule 144 (the “Effectiveness Period”). Upon the Registration Statement ceasing to be effective in connection with clause (ii) of this section, the Company shall take, at its sole expense, such further action, including the provision of a legal opinion, as so supplemented any Holder may reasonably request from time to time to enable such Holder to sell the Registrable Securities without registration under the Securities Act.
(b) The Company shall notify the Holders via facsimile or amendedelectronic mail of the effectiveness of the Registration Statement within three Trading Days of the Company telephonically confirming effectiveness with the Commission. The Company shall, by 9:30 AM Eastern Time on the Trading Day that is three Trading Days after the Effectiveness Date, file a Form 424(b)(5) with the Commission.
(c) If (i) the Registration Statement is not declared effective by the Commission within 250 days of September 13, 2010, or (ii) following the date in clause (i), the Registration Statement covering the Registrable Shares ceases to be filed pursuant to Rule 424; effective or usable at any time during the Effectiveness Period (iii) respond to any comments received from without being succeeded on the SEC with respect same date immediately by a post-effective amendment or supplement to the Registration Statement or any amendment thereto that cures such failure and as promptly as reasonably possible provide that is itself, in the Investor true and complete copies case of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply a post-effective amendment, declared effective within ten Trading Days of filing with the provisions of Commission) or the Securities Act with respect Holders are not permitted to utilize the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of Prospectus therein to resell such Registrable Securities for 20 consecutive Trading Days or in any individual case an aggregate of 30 Trading Days during any twelve-month period (which need not be consecutive Trading Days) (any of the foregoing being a “Registration Default” and for purposes of clause (i) the date on which such Registration Default occurs, or for purposes of clause (ii) the date on which such 20 or 30 Trading Day period, as applicable, is exceeded, each being a “Registration Default Date”) then, subject to Section 3, the Company shall have been disposed of pay to each Holder an amount in accordance with the intended methods of disposition by the seller or sellers thereof cash, as set forth in liquidated damages and not a penalty (“Liquidated Damages”): (A) equal to $25,000 on the Registration StatementDefault Date, and (B) on the 30th day thereafter and at the end of each subsequent 30-day period until such Registration Default is cured, equal to $25,000 on each such date, provided, however, that the sum of such amounts shall not exceed $500,000. In The foregoing represents the case of amendments and supplements sole monetary remedy to any Holder in connection with any Registration Default. The Company shall pay the Holders any Liquidated Damages on the Registration Statement required default Date, the day that is 30 days thereof and at the end of each subsequent 30-day period. If the Company fails to be filed pursuant to this Agreement (including pay any Liquidated Damages pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actin full, the Company will pay interest thereon at a rate of 8% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. A Registration Default under clause (i) above shall incorporate such report by reference into be cured on the date that the Registration Statement, if applicable, or shall file such amendments or supplements Statement is filed with the SEC and a Registration Default under clause (ii) above shall be cured on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement date that the Registration StatementStatement covering the Permitted Shares is declared effective by the SEC or is otherwise usable. Notwithstanding the foregoing, no Liquidated Damages shall accumulate as to any Registrable Security from and after the earlier of (x) the date such security is no longer a Registrable Security and (y) expiration of the Effectiveness Period.
(d) Beginning 60 days after effectiveness of The Company shall not be liable for any Liquidated Damages under Section 2(c) if the Registration Statement, upon Holders are not permitted to utilize the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, Prospectus because the Company may suspend the use is negotiating a merger, consolidation, acquisition or sale of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure all or substantially all of material nonpublic information concerning the Company, the disclosure of which at the time is notits assets or a similar transaction which, in the good faith opinion judgment of the CompanyBoard of Directors, requires the Registration Statement to be amended to include information in connection with such pending transaction (including the parties thereto) and such information is not yet available or publicly disclosable, or the Company is otherwise aware of such other material non-public information which, in the best interests good faith judgment of the Company or (ii) amend or supplement Board of Directors, requires the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary amended to make the statements thereininclude such other material non-public information and such information is not yet publicly disclosable, in the case for an aggregate of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable30 consecutive days.
(e) For any calendar month or part Each Holder agrees to furnish to the Company (i) a completed selling stockholder questionnaire not more than ten Trading Days before the filing of a month (“Delay Period”) that the Registration Statement has and (ii) such other information the Company reasonably requires to prepare the Registration Statement. Each Holder further agrees that it shall not been declared effective by the Initial Effectiveness Date, or, subject be entitled to Section 2(d), be named as a selling stockholder in the Registration Statement is not effective or use the Prospectus cannot for offers and resales of Registrable Securities at any time, unless such Holder has returned this information to the Company. Each Holder acknowledges and agrees that the information in the selling stockholder questionnaire or request for further information as described in this Section 2(e) will be used or has not been filed pursuant to Rule 424, by the Company shall, on in the first day preparation of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, Registration Statement and not as penalty, an amount equal hereby consents to the product obtained by multiplying $20,000 by a fraction, inclusion of such information in the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30Registration Statement.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all 125% of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form SB-2 (except if the Company is not then eligible to register for resale the Registrable Securities on Form SB-2, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (unless otherwise directed by the Holders) substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the terms of this Agreement, the Company shall use its best 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 prior to the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until all Registrable Securities covered by such Registration Statement have been sold or may be sold without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Registration Effectiveness Period”). No The Company shall immediately notify the Holders via facsimile of the effectiveness of the Registration Statement on the same day that the Company receives notification of the effectiveness from the Commission. Failure to so notify the Holder within 1 Trading Day of such notification shall register any security other than the Registrable Securitiesbe deemed an Event under Section 2(b).
(b) Within 10 days after If: (i) a Registration Statement is not filed on or prior to its Filing Date (if the Company consummates files a “Fundamental Transaction” (Registration Statement without affording the Holders the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferredrequired by Section 3(a), 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 a Registration Statement on Form S-3 will not be “reviewed,” or not subject to further review; or (or, if the Company is ineligible iii) prior to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall fails to file with a pre-effective amendment and otherwise respond in writing to comments made by the SECCommission in respect of such Registration Statement within 14 calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for a Registration Statement to be declared effective; or (iv) a Registration Statement filed or required to be filed hereunder is not declared effective by the Commission by its Effectiveness Date; or (v) after the Effectiveness Date, in accordance with a Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities Act Rule 424 for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities for 10 consecutive calendar days but no more than an aggregate of 15 calendar days during any 12-month period (which need not be consecutive Trading Days) (any such failure or breach being referred to as an “Rule 424Event”, and for purposes of clause (ii) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date on which such five Trading Day period is exceeded, or for purposes of clause (iii) the date which such 14 calendar day period is exceeded, or for purposes of clause (v) the date on which such 10 or 15 calendar day period, as applicable, is exceeded being referred to as “Event Date”), then in addition to any other rights the final Prospectus to be used in connection with sales pursuant to Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the Registration Statement. Before filing applicable Event shall not have been cured by such date) until the Registration Statementapplicable Event is cured, the Company shall furnish pay to each Holder an amount in cash, as partial liquidated damages and not as a draft of it penalty, equal to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours 1.5% of the receipt thereof from outstanding principal of the Company.
Notes for any Registrable Securities then held by such Holder for the first 30 days (cor part thereof) During after the Registration Period, subject to Section 2(dEvent Date and an additional 1.5% for any subsequent 30-day period (or part thereof), thereafter. If the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements fails to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by pay any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including partial liquidated damages pursuant to this Section 2(c)) by reason of in full within seven days after the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Actdate payable, the Company shall incorporate will pay interest thereon at a rate of 20% per annum (or such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report lesser maximum amount that is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required permitted to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (xpaid by applicable law) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part portion of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal prior to the product obtained by multiplying $20,000 by a fraction, the numerator cure of which shall be the number of days in that Delay Period, and the denominator of which is 30an Event.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness In order for a member of the Registration StatementLicensee’s staff to become registered for access to the Site, shall begin the Licensee must complete the relevant application form to register as nominated agent of an accredited Licensee and furnish the Licensor with the following information regarding the staff member to be registered:- Full Name; Sample of signature; Work Address and daytime telephone number; Two photographs signed on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, as determined back by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Companyrelevant member of Licensee’s transfer agent (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securitiesstaff.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined The Licensor shall acknowledge, in the Certificate of Designations for the Convertible Preferred)writing, the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale receipt of the Registrable Securities, application form and information listed at (a) above. This acknowledgement shall be forwarded by email to the Company shall use reasonable best efforts to cause Licensee within two (2) Business Days of receipt of the registration statement to be declared effective application by the closing of the Fundamental TransactionLicensor. The Registration Statement (and any amendment or supplement) Licensor shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts be deemed to have received the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, application in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used time limits set out in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft clause 15 of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Companythis Licence.
(c) During Where the Registration Period, subject to Section 2(d)application is not accompanied by items 1-4 above or the application is incomplete, the Company shallLicensor shall reject the application for registration and the Licensee shall be obliged to resubmit the application, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at when all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have information has been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementaccumulated.
(d) Beginning 60 days after effectiveness Where the application for registration is complete and adjudged by the Licensor to be in order, the Licensor shall register the member of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month periodLicensee’s staff, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion subject of the Company, in application and shall notify the best interests Licensee of the Company or registration within five (ii5) amend or supplement Business Days of receipt by the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case Licensor of the Prospectus in light of the circumstances under which they were made, not misleading application as per (an “Allowed Delay”); provided, that the Company shall promptly (xb) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableabove.
(e) For any calendar month or part Any member of a month the Licensee’s Staff seeking access to the Site must be registered in accordance with this clause at least five (“Delay Period”5) Business Days prior to the intended visit to the Site.
(f) It is the Licensee’s responsibility to ensure that the Registration Statement has not been declared effective by above details in respect of each staff member are forwarded to the Initial Effectiveness Date, or, subject Licensor. It is the Licensee’s responsibility to Section 2(d)forward details of any and all amendments to the above information to the Licensor.
(g) Where a member of the Licensee’s Staff is currently registered as a nominated agent of the Licensee in respect of another site, the Registration Statement is not effective or property of the Prospectus canLicensee, it shall not be used or has not been filed pursuant necessary for that member of the Licensee’s Staff to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30re-register under this clause.
Appears in 1 contract
Sources: Licence Agreement
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities, (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no Registerable Securities and (iii) the date on which all of the Registrable Securities have been sold or may be sold without any restrictions restriction pursuant to Rule 144, 144 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3not then eligible, then on Form S-1) or any successor form thereto covering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be included thereon in accordance with respect applicable SEC rules, regulations and interpretations so as to Investor’s permit the resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its commercial best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Business Day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Classover Holdings, 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 Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, Registration Statement shall be on Form S-3 (except if the Company is not then eligible to file and obtain and maintain effectiveness of the Registration Statement, shall begin on the date hereof and continue until all register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith) and shall contain (except if otherwise agreed by the Holders) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the Registration Statement to be declared effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date which is five years after the date that the Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by the Registration Statement have been sold or may be sold without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the affected Holders (the “Registration Effectiveness Period”). No Registration Statement The Company shall register not be obligated to enter into any security other than underwriting agreement for the sale of any of the Registrable Securities.
(b) Within 10 days after If: (i) the Registration Statement is not filed on or prior to the Filing Date (if the Company consummates a “Fundamental Transaction” (files the Registration Statement without affording the Holders the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferred)required by Section 3(a) hereof, the Company shall file a not be deemed to have satisfied this clause (i)), or (ii) after the Effective Date, the Registration Statement on Form S-3 (or, if ceases to be effective and available to the Company is ineligible Holders thereunder as to file on Form S-3, then on Form S-1) with respect to Investor’s resale all of the Registrable SecuritiesSecurities (whether upon the delivery of a notice pursuant to Section 6(d) or otherwise) at any time prior to the expiration of its Effectiveness Period without becoming available to the Holders thereunder as to all of the Registrable Securities within twenty Trading Days pursuant to the delivery of an Advice, and or (iii) the Company exercise rights of the Holders pursuant to the Warrants are suspended for any reason, or (iv) the Registration Statement shall use reasonable best efforts to cause the registration statement to not be declared effective by the closing of Commission on or prior to the Fundamental Transaction. The Registration Statement Effectiveness Date (and any amendment such failure or supplement) shall contain breach being referred to as an “Selling StockholdersEvent,” and for purposes of clause (i), (iii) or (iv) the date on which such Event occurs, or for purposes of clause (ii) the date which such twenty day-period is exceeded, being referred to as “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Event Date”). By 9:30 a.m., New York timethen, on in addition to any other rights available to the Trading Day following the Initial Effectiveness DateHolders, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus pay to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, Holder as liquidated damages, damages and not as penalty, an amount equal to a penalty the applicable Daily Liquidated Damages Percentage of the product obtained by multiplying $20,000 (x) the aggregate purchase price paid by the Original Purchaser pursuant to the Purchase Agreement for any Shares then held by such Holder for each day beginning with the Event Date and ending on the day immediately prior to the date such Event is cured. If multiple Events pursuant to clauses (i), (ii) and (iv) exist on a fractiongiven day, liquidated damages shall be payable with respect to only one Event pursuant to clauses (i), (ii) and (iv) on such day, but shall continue to accrue until the date on which all then existing Events pursuant to clauses (i), (ii) and (iv) are cured. The Company shall make payment of liquidated damages no later than the first Trading Day of the calendar month next succeeding the month in which such damages accrue. If the Company fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the numerator Company will pay interest thereon at a rate of which shall 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the number of days in that Delay PeriodHolder, and the denominator of which is 30.accruing daily
Appears in 1 contract
Sources: Registration Rights Agreement (American Technology Corp /De/)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and Registration Statements, obtain effectiveness of Registration Statements, and maintain the continuous effectiveness of the any Registration Statement, Statement that has been declared effective shall begin on the date hereof and continue until the earlier of (i) the date on which the Investor has sold all of the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144, and (ii) the date of termination of the Purchase Agreement if as determined by of such termination date the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Investor holds no Registrable Securities (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) as soon as practicable, but in no case later than the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (orS-1 or any successor form thereto covering the resale by the Investor of the Required Registration Amount in accordance with applicable SEC rules, if regulations and interpretations so as to permit the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the such Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective Securities by the closing of the Fundamental TransactionInvestor under Rule 415 at then prevailing market prices (and not fixed prices). The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best commercially reasonable efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m.am, New York timeEastern Time, on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Rule 424 under the Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 24 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Banzai International, Inc.)
Registration. As soon as possible following the Initial Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a "shelf" Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on Form SB-2 or another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than ninety (90) The Company’s registration obligations stated days after the Initial Closing Date (including filing with the Commission a request for acceleration of effectiveness in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 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 StatementStatement will not be "reviewed," or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act, shall begin on subject to Section 3(n) hereof, until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) with respect to any Holder, such time as all Registrable Securities held by such Holder may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s 's transfer agent to such effect (the “Registration "Effectiveness Period”"). No For purposes of the obligations of the Company under this Agreement, no Registration Statement shall register be considered "effective" with respect to any security Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as "Selling Stockholders" and includes such other than information as is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any such Holder is not included as a "Selling Stockholder" pursuant to Section 3(m). Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Investor Rights Agreement (Somanta Pharmaceuticals Inc.)
Registration. (a) On the Filing Date, the Company shall prepare and file with the Commission a pre-effective amendment to the Registration Statement covering the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415. The Company’s registration obligations stated Company shall cause the Registration Statement to become effective and remain effective as provided herein. The Company shall use its reasonable 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 this Section 2any event no later than February 23, including 2005. The Company shall use its obligations, as set forth herein, reasonable commercial efforts to file and obtain and maintain effectiveness keep the Registration Statement continuously effective under the Securities Act until the date which is the earlier date of when all Registrable Securities covered by the Registration Statement (i) either have been sold in a manner contemplated by the Registration Statement, shall begin on the date hereof and continue until all the Registrable Securities (ii) have been sold to the public in compliance with Rule 144, or (iii) may be sold immediately without any registration under the Securities Act and without volume restrictions pursuant to Rule 144144(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 's transfer agent (each, an "Effectiveness Period") . Thereafter, the “Company shall be entitled to withdraw the Registration Period”Statement and, upon such withdrawal, the Holders shall have no further right to offer or sell any of the Registrable Securities pursuant to such Registration Statement (or any Prospectus relating thereto). No Notwithstanding anything contained within to the contrary, the Company shall have the right to convert the Registration Statement to a registration statement on Form S-2 or Form S-3 or file a new registration statement on Form S-2 or Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 covering all the Registrable Securities subject to the Registration Statement and, upon the declaration of effectiveness thereof by the Commission, the Company shall register have the right to withdraw the Registration Statement (in which event, such registration statement on Form S-2 or Form S-3 will be deemed to be the Registration Statement for the purposes of this Agreement, including the Company's obligations with respect thereto).
(b) (i) the Effective Date does not occur prior to February 23, 2005; (ii) after the Effective Date, the Registration Statement ceases to be effective (by suspension pursuant to Sections 2(e), 6(c) or otherwise) as to all Regishable Securities to which it is required to relate at any security other time prior to the expiration of the Effectiveness Period (without being succeeded immediately by an additional Registration Statement filed and declared effective) for a period of time that 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 Effective Date); or (iii) the Common Stock is not listed or quoted, or is suspended from trading on any Trading Market for a period of three (3) consecutive Trading Days (provided the Company shall not have been able to cure such trading suspension within 30 days of the notice thereof or list the Common Stock on another Trading Market); (any such failure or breach being referred to as an "Event," and for purposes of clause (i) the date on which such Event occurs, or for purposes of clause (ii) the date which such 30 day or 20 consecutive day period (as the case may be) is exceeded, or for purposes of clause (iii) the date on which such three (3) Trading Day period is exceeded, being referred to as "Event Date"), then until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as a sole remedy and as liquidated damages and not as a penalty, equal to 1.50% for each thirty (30) day period (prorated for partial periods) on a daily basis of the original principal amount of the Note. While such Event continues, such liquidated damages shall be paid not less often than each thirty (30) days. Any unpaid liquidated damages as of the date when an Event has been cured by the Company shall be paid within three (3) days following the date on which such Event has been cured by the Company.
(c) Within three business days after the Effectiveness Date, the Company shall issue a letter to the transfer agent (and, if required by the transfer agent, a legal opinion) 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 letter required by this Section 2(c) shall be delivered to the Purchaser within the time frame set forth above.
(d) The Company may require each Holder of Registrable Securities as to which any registration is being effected to furnish to the Company, within ten calendar days after written request therefor has been made by the Company, such information regarding the distribution of such Holder's Registrable Securities as is required by law to be disclosed in the Registration Statement (the "Requisite Information").
(i) The Company shall file prospectus supplements pursuant to Rule 424 under the Securities Act (or any successor provision thereto) to amend or supplement the applicable Registration Statement to include in the Registration Statement the Requisite Information as to each Holder (and the Registrable Securities held by such Holder) that provides notice to the Company of the Requisite Information. The Company shall file such a prospectus supplement with the Commission no less than once every twenty business days if during such period the Company receives notice from any Holder which includes the Requisite Information with respect to any such Holder. The Company shall provide each Holder a copy of such Prospectus as so amended or supplemented containing the Requisite Information within three business days of filing such Prospectus with the Commission in order to permit such Holder to comply with the prospectus delivery requirements of the Securities Act in a timely manner with respect to any proposed disposition of such Holder's Registrable Securities.
(bii) Within 10 days after No Holder shall be entitled to use the Prospectus unless and until such Holder shall have furnished the information required by this Section 2(d) in accordance with the first or second paragraph hereof and such information with respect to such Holder shall have been included in the Prospectus. If any information furnished to the Company consummates by a “Fundamental Transaction” (as defined Holder for inclusion in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 or the Prospectus becomes materially misleading, such Holder agrees (or1) to furnish promptly to the Company all information required to be disclosed in such Registration Statement in order to make the information previously furnished to the Company not materially misleading and (ii) to stop selling or offering for sale Registrable Securities pursuant to the Registration Statement until such Holder's receipt of the copies of a supplemented or amended Prospectus correcting such disclosure. The Company shall have no obligation to keep a Prospectus usable with respect to a particular Holder or to give notice that a Prospectus is not usable by such Holder to the extent such Prospectus is not usable by such Holder because current Requisite Information with respect to such Holder is not included therein because such Holder has not provided such information to the Company in accordance with this Section 2(d).
(e) Notwithstanding anything in this Section 2 to the contrary, if the Company is ineligible shall furnish to file on Form S-3, then on Form S-1) with respect to Investor’s resale the Holders a certificate signed by the President or Chief Executive Officer of the Company stating that the Company's Board of Directors has made the good faith determination (i) that the continued use by the Holders of the Registration Statement for purposes of effecting offers or sales of Registrable SecuritiesSecurities pursuant thereto would require, under the Securities Act and the rules and regulations promulgated thereunder, premature disclosure in the Registration Statement (or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company, (ii) that such premature disclosure would be materially adverse to the Company, its business or prospects or any such proposed material transaction or would not be in the best interests of the Company shall and (iii) that it is therefore essential to suspend the use reasonable best efforts to cause the registration statement to be declared effective by the closing Holders of the Fundamental Transaction. The Registration Statement (and the Prospectus relating thereto), then the right of the Holders to use the Registration Statement (and the Prospectus relating thereto) for purposes of effecting offers or sales of Registrable Securities pursuant thereto shall be suspended for a period (the "Suspension Period") not greater than sixty (60) days during any amendment consecutive twelve (12) month period, which shall include no more than thirty (30) consecutive days. During the Suspension Period, the Holders shall not offer or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorsell any Registrable Securities pursuant to or in reliance upon the Registration Statement (or the Prospectus relating thereto). The Company shall use its best efforts to have the Registration Statement declared effective by the SEC agrees that, as soon promptly as practicablepossible, but in no event later than three (3) business days, after the closing consummation, abandonment or public disclosure of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, event or transaction that caused the Company shall file with to suspend the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft use of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of (and the receipt thereof from the Company.
(cProspectus relating thereto) During the Registration Period, subject pursuant to this Section 2(d2(e), the Company shallwill lift any suspension, promptlyprovide the Holders with revised Prospectuses, (i) prepare if required, and file with will notify the SEC such amendments (including post-effective amendments) and supplements Holders of their ability to the Registration Statement and related Prospectus to be filed effect offers or sales of Registrable Securities pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes or in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement reliance upon the Registration Statement.
(df) Beginning 60 days after effectiveness of Notwithstanding anything in this Agreement to the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month periodcontrary, the Company may suspend will have no obligation to register the use resale of the Registrable Securities, or take any Prospectus included in the Registration Statement if other action required under this Agreement, unless and until the Company determines in good faith that such suspension is necessary becomes obligated to (i) delay issue the disclosure of material nonpublic information concerning Note to the Company, Purchaser pursuant to the disclosure of which at the time is not, in the good faith opinion terms of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicablePayment Agreement.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Tn-K Energy Group Inc.)
Registration. (a) Promptly following the expiration of the first Restricted Period and if Rule 144 is or becomes unavailable for resale of the Parent Shares issuable to Stockholders pursuant to the Merger Agreement (taking into account the required holding period under Rule 144), the Parent shall prepare and file with the SEC a Registration Statement covering the resale of all of the Registrable Securities for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Parent may reasonably determine (the “Initial Registration Statement”); provided, however, that (1) in the event that the Parent becomes aware prior to the expiration of the Restricted Period that a Stockholder would not qualify under Rule 144 to be able to sell such Stockholder’s Registrable Securities being released from lock-up as of or immediately following the expiration of the first Restricted Period, the Parent will use commercially reasonable efforts to prepare and file an Initial Registration Statement prior to the end of the first Restricted Period and (2) if the Parent has not filed an Initial Registration Statement by within 270 days immediately following the Closing (as defined in the Merger Agreement), then if the Stockholder Representative provides a written demand to the Parent within three (3) months following the end of such 270-day period that is signed by Stockholders holding at least 50% of the Registrable Securities issued as of the Closing under the Merger Agreement, then the Parent will use reasonable best efforts to prepare and file an Initial Registration Statement. The CompanyParent’s obligation to file a Registration Statement pursuant to this Agreement applies only if and when the Parent Shares issuable to Stockholders pursuant to the Merger Agreement are determined to not be eligible to be resold pursuant to Rule 144 (without volume limitations) under the Securities Act of 1933, as amended (taking into account the required holding period under Rule 144). The Initial Registration Statement shall be on Form S-3, or such other form the Parent is eligible to use at that time. Notwithstanding the registration obligations stated set forth in this Section 21, including its obligationsin the event the SEC informs the Parent that all of the Registrable Securities cannot, as set forth hereina result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Parent agrees to promptly (i) inform each of the Stockholders thereof via electronic mail at the address noted on the latest Selling Stockholder Questionnaire or supplement thereto (if any) received by the Parent and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the SEC and/or (ii) withdraw the Initial Registration Statement and obtain and maintain effectiveness 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 S-3 or such other form available to the Parent to register for resale the Registrable Securities as a secondary offering. Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering, the number of Registrable Securities shall be reduced on a pro rata basis, subject to a determination by the SEC that certain Stockholders must be reduced before other Stockholders based on the number of Registrable Securities held by such Stockholders. In the event the Parent amends the Initial Registration Statement or files a New Registration Statement, shall begin as the case may be, under clauses (i) or (ii) above, the Parent will use its commercially reasonable efforts to file with the SEC, as promptly as allowed by SEC or SEC Guidance provided to the Parent or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to the Parent to register for resale those Registrable Securities that were not registered for resale on the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144Initial Registration Statement, as determined by amended, or the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent New Registration Statement (the “Remainder Registration PeriodStatements”). No Stockholder shall be named as an “underwriter” in any Registration Statement shall register any security other than the Registrable Securitieswithout such Stockholder’s prior written consent.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company The Parent shall use its commercially reasonable best efforts to cause the registration statement each Registration Statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicablepracticable following the filing of such Registration Statement and, but in no event later than with respect to the closing Initial Registration Statement or the New Registration Statement, as applicable, shall use its commercially reasonable efforts to keep each Registration Statement continuously effective under the Securities Act until two years following the expiration of the Fundamental Transaction last Restricted Period (or, if sooner, the time when the Stockholders have sold or otherwise no longer hold any Registrable Securities) (the “Initial Effectiveness DatePeriod”). By 9:30 a.m., New York time, The Parent shall request effectiveness of a Registration Statement following market close on a Trading Day. The Parent shall promptly notify the Stockholders via electronic mail at the address noted on the Trading Day latest Selling Stockholder Questionnaire or supplement thereto (if any) received by the Parent of a “.pdf” format data file of the effectiveness of a Registration Statement (or, if none, will notify the Stockholder Representative). If necessary, the Parent shall promptly, following the Initial Effectiveness Effective Date, the Company shall file a final Prospectus with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”424(b), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During Each Stockholder agrees to furnish to the Parent a completed Selling Stockholder Questionnaire. At least ten Trading Days prior to the first anticipated filing date of a Registration Period, subject to Section 2(d)Statement for any registration under this Agreement, the Company shallParent will notify the Stockholder Representative (or, promptlyif the Parent has been provided the email address of the Stockholder, (iat that email address) prepare of the information the Parent requires from the applicable Stockholder including the information contained in the Selling Stockholder Questionnaire, which shall be completed and file with delivered to the SEC such amendments (including post-effective amendments) and supplements Parent promptly upon request and, in any event, within five Trading Days prior to the applicable anticipated filing date. Each Stockholder further agrees that it shall not be entitled to be named as a selling securityholder in the Registration Statement or use the Prospectus for offers and related Prospectus resales of Registrable Securities at any time, unless such Stockholder has returned to be filed pursuant the Parent a completed and signed Selling Stockholder Questionnaire and a response to Rule 424, any requests for further information as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes described in the “previous sentence. If a Stockholder holding Registrable Securities returns a Selling Stockholders” and “Plan of Distribution” sectionsStockholder Questionnaire or a request for further information, in either case, after its respective deadline, the Parent shall use its commercially reasonable efforts to take such actions as specified by the Investor; (ii) cause the related Prospectus are required to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, name such Stockholder as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to a selling security holder in the Registration Statement or any pre-effective or post-effective amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to include (to the SEC relating extent not theretofore included) in the Registration Statement the Registrable Securities identified in such late Selling Stockholder Questionnaire or request for further information. Each Stockholder acknowledges and agrees that the information in the Selling Stockholder Questionnaire or request for further information as described in this Section 1(c) will be used by the Parent in the preparation of the Registration Statement and hereby consents to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all inclusion of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth information in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. 2.1 The Company shall, within thirty (a30) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness of the Registration Statement, shall begin on calendar days upon the date hereof and continue until all the Registrable Securities have been sold or may be sold without any restrictions pursuant to Rule 144of execution of this Agreement, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to file with the SEC a Registration Statement or Registration Statements (as is necessary) on Form S-1 (or, if such form is unavailable for such a registration, on such other form as is available for such registration), covering the resale of the maximum number of Registrable Securities permitted by Rule 415 and the SEC’s interpretations thereof, which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement also covers such indeterminate number of additional shares of Common Stock as may become issuable upon stock splits, stock dividends or similar transactions. The Company shall initially register for resale a number of Registrable Securities equal to 29,000,000 shares, except to the extent that the SEC requires the share amount to be reduced as a condition of effectiveness. Notwithstanding anything to the contrary herein, the Company shall never be required to register a number of Registrable Securities in excess of that number permitted by the SEC, or the maximum number of shares that would be registrable under Rule 415, and the SEC’s interpretations thereof.
2.2 The Company shall use all commercially reasonable efforts to have the Registration Statement Statement(s) declared effective by the SEC as soon as practicablewithin thirty (30) calendar days, but no more than ninety (90) calendar days after the Company has filed the Registration Statement.
2.3 The Company agrees not to include any other securities in no event later than the closing of Registration Statement covering the Fundamental Transaction (“Initial Effectiveness Date”)Registrable Securities without Investor’s prior written consent which Investor may withhold in its sole discretion. By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness DateFurthermore, the Company agrees that it will not file any other Registration Statement for other securities, until thirty (30) calendar days after the Registration Statement for the Registrable Securities is declared effective by the SEC, except that the Company shall be permitted to file other Registration Statements if the Registration Statement covering the initial Registrable Securities has not been declared effective within four months after the date that the Registration Statement was initially filed with the SEC.
2.4 Notwithstanding the registration obligations set forth in Section 2.1, if the staff of the SEC (the “Staff”) or the SEC informs the Company that all of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform the Investor and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC and/or (ii) withdraw the Registration Statement and file a new registration statement (the “New Registration Statement”), in either case covering a number of Registrable Securities mutually determined at such time by the parties in an amount permitted to be registered by the SEC, on Form S-1 to register for resale the Registrable Securities as a secondary offering. If 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 commercially reasonable efforts to file with the SEC, in accordance with as promptly as allowed by the Staff or SEC, one or more registration statements on Form S-1 to register for resale those Registrable Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing that were not registered for resale on the Registration Statement, as amended, or the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the New Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Periodeach, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the an “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Additional Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Adm Endeavors, Inc.)
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to each Filing Date, including its obligations, as set forth herein, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities for an offering to file and obtain and maintain effectiveness of be made on a continuous basis pursuant to Rule 415. Each Registration Statement shall be on Form S-3 (except if the Registration Statement, shall begin on the date hereof and continue until all 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 in accordance herewith) and shall contain (except if otherwise directed by the Holders) the "Plan of Distribution" attached hereto as -------------------- Annex A. The Company shall cause such 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 prior to its Effectiveness Date, and shall use its best efforts to keep each Registration Statement continuously effective under the Securities Act until the date which is two years after the date that such Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities covered by such Registration Statement have been sold or may be sold without any volume restrictions pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s 's transfer agent and the affected Holders (the “Registration "Effectiveness Period”"). No Registration Statement shall register any security other than the Registrable Securities.--------------------
(b) Within 10 days after If: (a) a Registration Statement is not filed on or prior to its Filing Date (if the Company consummates files a “Fundamental Transaction” (Registration Statement without affording the Holder the opportunity to review and comment on the same as defined in the Certificate of Designations for the Convertible Preferredrequired by Section 3(a), the Company shall not be deemed to have satisfied this clause (a)), or (b) 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 a Registration Statement on Form S-3 will not be "reviewed," or not subject to further review, or (or, if c) prior to the Company date when such Registration Statement is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be first declared effective by the closing Commission, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of the Fundamental Transaction. The such Registration Statement (and any within ten Trading Days after the receipt of comments by or notice from the Commission that such amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the is required in order for a Registration Statement to be declared effective, or (d) a Registration Statement filed or required to be filed hereunder is not declared effective by the SEC Commission by its Effectiveness Date, or (e) after a Registration Statement is first declared effective by the Commission, it ceases for any reason to remain continuously effective as soon to all Registrable Securities for which it is required to be effective, or the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities, for in any such cases an aggregate of ten Trading Days (which need not be consecutive Trading Days) (any such failure or breach being referred to as practicablean "Event," and for purposes of ----- clause (a) or (d) the date on which such Event occurs, but or for purposes of clause (b) the date on which such five Trading Day period is exceeded, or for purposes of clauses (c) the date which such ten Trading Day period is exceeded, or for purposes of clause (e) the date on which such ten Trading Day period is exceeded being referred to as "Event Date"), then in no event later than additional to any other rights the closing ---------- Holders may have hereunder or applicable law: (x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1% of the Fundamental Transaction aggregate purchase price paid by such Holder pursuant to the Purchase Agreement; and (“Initial Effectiveness Date”). By 9:30 a.m., New York time, y) on each monthly anniversary of each such Event Date (if the Trading Day following applicable Event shall not have been cured by such date) until the Initial Effectiveness Dateapplicable Event is cured, the Company shall file with pay to each Holder an amount in cash, as liquidated damages and not as a penalty, equal to 1% of the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales aggregate purchase price paid by such Holder pursuant to the Registration StatementPurchase Agreement. Before filing If the Registration StatementCompany fails to pay any liquidated damages pursuant to this Section in full within seven days after the date payable, the Company shall furnish will pay interest thereon at a draft rate of it 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof Holder, accruing daily from the Companydate such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.
(c) During The Company will file additional Registration Statements if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Statement. Such additional Registration Statement shall cover the resale by the Holders of not less than 110% of the number of shares required in order that all Registrable Securities outstanding and related Prospectus issuable upon exercise of the Warrants relating to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to would then be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statementregistered.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Storage Computer Corp)
Registration. (a) The Company’s registration obligations stated in this Section 22.1 On or prior to each Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each 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 in accordance herewith, subject to the provisions of Section 2.5) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such ▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3.3) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold sold, thereunder or pursuant to Rule 144, or (ii) may be sold without any volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Transfer Agent and the affected Holders (the “Registration Effectiveness Period”). No The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2.4.
2.2 Notwithstanding the registration obligations set forth in Section 2.1, if the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2.5; with respect to filing on Form S-3 or other appropriate form, and shall not be subject to payment of liquidated damages hereunder with respect to any security cut back shares; provided, however, that prior to filing such amendment, the Company shall be obligated to use reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
2.3 Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2.4, if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used reasonable efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows
(a) First, the Company shall reduce or eliminate any securities to be included other than the Registrable Securities.; and
(b) Within 10 days after the Company consummates a “Fundamental Transaction” shall reduce Registrable Securities represented by Warrant Shares (as defined applied, in the Certificate case that some Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of Designations for unregistered Warrant Shares held by such Holders). In the Convertible Preferred)event of a cutback hereunder, the Company shall file a give the Holder at least three (3) Trading Days prior written notice along with the calculations as to such ▇▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
2.4 If: (or, i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company is ineligible files the Initial Registration Statement without affording the Holders the opportunity to file review and comment on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and same as required by Section 3.1 herein or the Company shall use reasonable best efforts to cause subsequently withdraws the registration statement to be declared effective by the closing filing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a draft request for acceleration of it a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Investor Securities Act, within five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, 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 fifteen (15) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for its review and comment. The such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement (provided that, if the Registration Statement does not allow for the resale of Registrable Securities at prevailing market prices (i.e., only allows for fixed price sales), the Company shall have been deemed to have not satisfied this clause), or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement during the Effectiveness Period, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities other than due to an Allowed Delay, for more than fifteen (15) consecutive calendar days or more than an aggregate of twenty (20) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such fifteen (15) calendar day period is exceeded, and for purpose of clause (v) the date on which such fifteen (15) or twenty (20) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each weekly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement, provided that no liquidated damages shall be payable if and to the extent to, despite best efforts by the Company to avoid a breach hereof, the Company’s failure was caused by, and/or related to, a partial or full government shutdown resulting in the Commission’s inability to timely review or declare effective the Registration Statement or if as a result of SEC Guidance, the Company is unable to include Investor’s reasonable comments certain Registrable Securities in the Registration Statement given until receiving Shareholder Approval. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within 48 hours of seven days after the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d)date payable, the Company shallwill 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, promptlyaccruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
2.5 [Reserved.]
2.6 If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) prepare register the resale of the Registrable Securities on another appropriate form and file with (ii) undertake to register the SEC Registrable Securities on Form S-3 as soon as such amendments (including post-effective amendments) and supplements to form is available, provided that the Company shall maintain the effectiveness of the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes then in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement effect until such time as all of such a Registration Statement on Form S-3 covering the Registrable Securities shall have has been disposed of in accordance with the intended methods of disposition declared effective by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements Commission.
2.7 Notwithstanding anything to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-Kcontrary contained herein, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, in no event shall the Company shall incorporate such report by reference into the Registration Statement, if applicable, be permitted to name any Holder or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form affiliate of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in Holder as any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (Underwriter without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableHolder.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Safe & Green Development Corp)
Registration. (a) The Company’s registration obligations stated in this Section 2Company represents and warrants to Liraz that all shares required to be issued pursuant to section 1, including its obligations, as set forth herein, to file and obtain and maintain effectiveness 22,400,000 shares for the cancellation of the Registration Statement, shall begin promissory note plus accrued interest; 2,400,000 shares issued in November 2005 for the extension of the loan guaranty and extension of the maturity date on the bank indebtedness; 3,600,000 warrants issued in November 2005 in consideration for extension of the loan guaranty and extension of the maturity date hereof on the bank indebtedness and continue 6,000,000 shares as compensation for the extension of the loan guarantee and extension of the maturity date of the bank indebtedness until October 31, 2007 and before any reverse stock splits shares that may be issued pursuant to section 3, and the 3,942,000 shares issued pursuant to an agreement between the parties dated on or about September 29, 2004, will be included in a registration statement on Form S-1 filed with the Securities and Exchange Commission (the “SEC”) within 45 days from the date of execution of this agreement. The Company shall cause such registration statement to become effective and current, until (a) all the Registrable Securities have been sold or certificates evidencing the unsold shares covered by the registration statement cease to bear any restrictive legends, (b) no such shares are subject to any stop transfer orders, and (c) all the unsold shares covered by the registration statement may be sold publicly without registration under the Securities Act of 1933 (without limitation as to volume in any restrictions period). Except as otherwise provided in this section 4, the provisions of the registration rights agreement among the Company and the Purchasers named therein dated October 15, 2003 shall be applicable to the shares required to be registered pursuant to Rule 144this section 4, 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 (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securitiesmutatis mutandis.
(b) Within 10 days after Notwithstanding anything to the Company consummates a “Fundamental Transaction” (as defined contrary in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (orthis section 4, if the Company is ineligible or becomes a party to file on Form S-3, then on Form S-1) any agreement with respect to Investor’s resale any other person or entity respecting registration of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with shares under Securities Act Rule 424 (“Rule 424”)of 1933, the final Prospectus which agreement contains provisions entitling such other person or entity to rights not otherwise provided to Liraz under this section 4, this section 4 shall be used in connection with sales pursuant deemed amended to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be extent necessary to keep provide Liraz such Registration Statement effective at all times during additional rights (but without adversely affecting the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of rights otherwise provided under this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(csection 4)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) On or prior to 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 (except as provided in Section 2(b) and Section 2(d)) for an offering to be made on a continuous basis pursuant to Rule 415. The Company’s 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 obligations stated 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 this Section 2substantially the form attached hereto as Annex A. The Company shall use its best efforts to cause each Registration Statement to be declared effective under the Securities Act as soon as possible but, including its obligationsin any event, as set forth herein, to file and obtain and maintain effectiveness of no later than the Effectiveness Date for such Registration Statement, and shall begin on use its best efforts to keep the Registration Statement continuously effective under the Securities Act until the date hereof and continue until on which all the Registrable Securities have been sold under such Registration are available for sale under Rule 144(b) (or may be sold any successor provision thereto) without any restrictions pursuant to Rule 144, 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 volume limitation (the “Registration Effectiveness Period”). No It is agreed and understood that the Company shall, from time to time, be obligated to file one or more additional Registration Statement shall register Statements to cover any security other than the Registrable SecuritiesSecurities which are not registered for resale pursuant to a pre-existing Registration Statement.
(b) Within 10 days after Notwithstanding anything contained herein to the Company consummates a “Fundamental Transaction” (as defined contrary, including the fact that such Registrable Securities may be registered pursuant to the Registration Statement referred to in Section 2(d) below, in the Certificate event that the Commission limits the amount of Designations for Registrable Securities that may be included and sold by Holders in any Registration Statement, including the Convertible Preferred)Initial Registration Statement, pursuant to Rule 415 or any other basis, the Company shall file a may reduce the number of Registrable Securities included in such Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale behalf of the Holders (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 Shares requested to be registered by each such Holder over the total amount of Registrable Securities represented by Shares, and second in proportion to the respective numbers of Registrable Securities represented by Underlying Shares requested to be registered by each such Holder over the total amount of Registrable Securities represented by Underlying Shares) (such Registrable Securities, the “Reduction Securities”). In such event the Company shall give the Holders prompt notice of the number of such Reduction Securities and the Company shall use reasonable best efforts to cause will not be liable for any liquidated damages under Section 2(c), or otherwise under this Agreement, in connection with the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by InvestorReduction Securities. The Company shall use its best efforts at the first opportunity that is permitted by the Commission to have register for resale the Reduction Securities. Such new Registration Statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Reduction Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose) and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its best efforts to cause each such Registration Statement to be declared effective by under the SEC Securities Act as soon as practicablepossible but, but in any event, no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Date for such Registration Statement, the Company and shall furnish a draft of it use its best efforts to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the keep such Registration Statement given within 48 hours of continuously effective under the receipt thereof from Securities Act during the Companyentire Effectiveness Period.
(c) During If: (i) a Registration Statement is not filed on or prior to its Filing Date, (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, such Registration Statement ceases for any reason (including without limitation by reason of a stop order or the Company’s failure to update the Registration PeriodStatement) 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 an aggregate of more than 30 consecutive Trading Days or an aggregate of 60 Trading Days (which need not be consecutive) in any given 360-day period, subject (any such failure or breach being referred to Section 2(das an “Event,” and for purposes of clauses (i) or (ii) the date on which such Event occurs, and for purposes of clause (iii) the date on which such 30 consecutive or 60 Trading Day-period (as applicable) is exceeded, being referred to as the “Event Date”), then, in addition to any other rights available to the Holders, 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 shallshall pay each Holder an amount in cash, promptlyas partial liquidated damages and not as a penalty, (i) prepare and file with equal to 1% of the SEC aggregate purchase price paid by such amendments (including post-effective amendments) and supplements Holder pursuant to the Registration Statement and related Prospectus to Purchase Agreement for its Registrable Securities then held; provided, that all periods shall be filed pursuant to Rule 424tolled, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sectionsa Holder, as specified by the Investor; (iinumber of Trading Days during which such Holder fails to provide the Company with information regarding such Holder which was reasonably requested by the Company in order to effect the registration of such Holder’s Registrable Securities pursuant to Section 7(e) cause the related Prospectus to hereof. It shall be amended or supplemented by any required Prospectus supplement (subject a condition precedent to the terms obligations of this Agreement) and, as so supplemented or amended, the Company to be filed pay any liquidated damages pursuant to Rule 424; (iii) respond to any comments received from the SEC this Section 2 with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of any Holder that such Holder shall furnish to the Company covered by such Registration Statement until such time as all of such information regarding itself and the Registrable Securities held by it. The partial liquidated damages pursuant to the terms hereof shall have been disposed apply on a pro rata basis for any portion of in accordance a month prior to the cure of an Event. Notwithstanding the foregoing, the maximum payment to a Holder associated with the intended methods of disposition by the seller or sellers thereof as set forth all Events in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company aggregate shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to exceed (i) delay the disclosure in any 30-day period following an Event Date, an aggregate of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion 1% of the Company, in aggregate purchase price paid by such Holder pursuant to the best interests of the Company or Purchase Agreement for its Registrable Securities then held and (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case 8% of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose aggregate purchase price paid by such Holder pursuant to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use Purchase Agreement for its best efforts to terminate an Allowed Delay as promptly as practicableRegistrable Securities then held.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Registration. (a) The Company’s registration obligations stated in this Section 2On or prior to each Filing Date, including its obligations, as set forth herein, to the Company shall prepare and file and obtain and maintain effectiveness with the Commission a Registration Statement covering the resale of the Registration Statement, shall begin on the date hereof and continue until all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each 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 in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such H▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement (i) have been sold sold, thereunder or pursuant to Rule 144, or (ii) may be sold without any volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent Transfer Agent and the affected Holders (the “Registration Effectiveness Period”). No The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall register any security other than immediately notify the Registrable SecuritiesHolders via e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) Within 10 days after Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company consummates that all of the Registrable Securities cannot, as a “Fundamental Transaction” (result of the application of Rule 415, be registered for resale as defined in a secondary offering on a single registration statement, the Certificate Company agrees to promptly inform each of Designations the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Convertible PreferredRegistrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall file a Registration Statement on Form S-3 be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(orc) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company is ineligible used diligent efforts to file advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on Form S-3such Registration Statement will be reduced as follows:
a. First, then on Form S-1) the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
b. Second, the Company shall reduce Registrable Securities represented by Warrant Shares underlying Series H-1 and H-2 Warrants (as directed by the applicable Holder with respect to Investor’s resale the Series H-1 and H-2 Warrants) (applied, in the case that some such Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of the Registrable Securitiesunregistered Warrant Shares held by such Holders); and
c. Third, and the Company shall reduce Registrable Securities represented by Shares and Series I Warrants (applied, in the case that some Shares and Series I Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares and Series I Warrant Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least three (3) Trading Days prior written notice along with the calculations as to such H▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SECCommission, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement. Before , as amended.
(d) If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein or the Company subsequent withdraws the filing of the Registration Statement, the Company shall furnish be deemed to have not satisfied this clause (i) as of the Filing Date), or (ii) the Company fails to file with the Commission a draft request for acceleration of it a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Investor 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 such Registration Statement will not be “reviewed” or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, 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 ten (10) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for its review and comment. The Company shall include Investor’s reasonable comments in such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement (provided that, if the Registration Statement given within 48 hours does not allow for the resale of the receipt thereof from the Company.
Registrable Securities at prevailing market prices (c) During the Registration Periodi.e., subject to Section 2(donly allows for fixed price sales), the Company shallshall have been deemed to have not satisfied this clause) or (v) after the effective date of a Registration Statement, promptlysuch Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) prepare and file with (iv), the SEC date on which such amendments Event occurs, and for purpose of clause (including post-effective amendmentsii) the date on which such five (5) Trading Day period is exceeded, and supplements for purpose of clause (iii) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (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 the product of 1.0% multiplied by the aggregate Subscription 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 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale 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 maintain the effectiveness of the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes then in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement effect until such time as all of such a Registration Statement on Form S-3 covering the Registrable Securities shall have has been disposed of in accordance with the intended methods of disposition declared effective by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration StatementCommission.
(df) Beginning 60 days after effectiveness of Notwithstanding anything to the Registration Statementcontrary contained herein, upon in no event shall the advice of Company counsel in the form be permitted to name any Holder or affiliate of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in Holder as any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (underwriter” without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicableHolder.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Intelligent Bio Solutions Inc.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and a Registration Statement, obtain and maintain effectiveness of the Registration Statement, and maintain the continuous effectiveness of Registration Statement that have been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may permanently be sold without any restrictions pursuant to Rule 144, 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 Investor (the “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall (i) on or prior to the Filing Deadline, prepare and file a with the SEC an initial Registration Statement on Form S-3 (or, if S-1 or any successor form thereto covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale by the Investor of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain the “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investorsections in the form appropriate for such a transaction. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York time, am on the Trading Day business day following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and comment. The Company Investor shall include Investor’s reasonable furnish comments in on the Registration Statement given to the Company within 48 twenty-four (24) hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, shall (i) promptly prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related the Prospectus used in connection with the Registration Statement, which Prospectus is to be filed pursuant to Rule 424424 promulgated under the Securities Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and), and as so supplemented or amended, amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any comments received from the SEC with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor Investors true and complete copies of all correspondence from and to the SEC relating to a Registration Statement (provided that the Registration StatementCompany may excise any information contained therein which would constitute material non-public information as to any Investor which has not executed a confidentiality agreement with the Company); and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the such Registration Statement. In the case of amendments and supplements to the a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Business Combination Agreement (Greenrose Acquisition Corp.)
Registration. (a) The Company’s registration obligations stated set forth in this Section 2, 2 including its obligations, as set forth herein, obligations to file and one or more Registration Statements, obtain effectiveness of such Registration Statements, and maintain the continuous effectiveness of the such Registration Statement, Statements that have been declared effective shall begin on the date hereof and continue until all the Registrable Securities have been sold or may permanently be sold without any restrictions pursuant to Rule 144, 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 “Registration Period”). No Registration Statement shall register any security other than the Registrable Securities.
(b) Within 10 days after Subject to the Company consummates a “Fundamental Transaction” (as defined in the Certificate terms and conditions of Designations for the Convertible Preferred)this Agreement, the Company shall shall, on or prior to the Filing Deadline, prepare and file with the SEC a Registration Statement on Form S-3 (or, if F-1 or Form F-3 covering the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale by the Investor of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Each Registration Statement (and any amendment or supplement) prepared pursuant hereto shall register for resale at least the number of ADSs each representing three Ordinary Shares equal to the Required Registration Amount as of date the Registration Statement is initially filed with the SEC. Each Registration Statement shall contain the “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor”. The Company shall use its best efforts to have the each Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”)Deadline. By 9:30 a.m., New York am (Chicago time, ) on the Trading Day date following the Initial Effectiveness Datedate of effectiveness, the Company shall file with the SEC, SEC in accordance with Securities Act Rule 424 (“Rule 424”), under the 1933 Act the final Prospectus to be used in connection with sales pursuant to the such Registration Statement. Before Prior to the filing of the Registration StatementStatement with the SEC, the Company shall furnish a draft of it the Registration Statement to the Investor for its their review and commentcomment in accordance with the procedures set forth in Section 3(a) hereof. The Company Investor shall include Investor’s reasonable furnish comments in (if any) on the Registration Statement given to the Company within 48 twenty-four (24) hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), Period the Company shall, promptly, shall (i) promptly prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the each Registration Statement and related Prospectus used in connection with a Registration Statement, which Prospectus is to be filed pursuant to Rule 424424 promulgated under the Securities Act, as may be necessary to keep each such Registration Statement effective at all times during the applicable times in the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) prepare and file with the SEC additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities (to the extent not previously covered by a Registration Statement filed and declared effective in the applicable times in the Registration Period)); (iii) cause the related Prospectus for each Registration Statement filed and declared effective in the applicable times in the Registration Period to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and), and as so supplemented or amended, amended to be filed pursuant to Rule 424; (iiiiv) respond as promptly as reasonably possible to any comments received from the SEC with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor Investors true and complete copies of all correspondence from and to the SEC relating to a Registration Statement (provided that the Registration StatementCompany may excise any information contained therein which would constitute material non-public information as to any Investor which has not executed a confidentiality agreement with the Company); and (ivv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such each effective Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the such Registration Statement. In the case of amendments and supplements to the a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 1020-K, Form 10-QF, or Form 86-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Registration Rights Agreement (Molecular Data Inc.)
Registration. As soon as possible following the Closing Date (abut not later than the Filing Date), the Company shall prepare and file with the Commission a "shelf" Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith). The Company shall use its best efforts to cause the Registration Statement to be declared effective under the Securities Act not later than the Effective Date (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act within five (5) The Company’s registration obligations stated in this Section 2, including its obligations, as set forth herein, to file and obtain and maintain effectiveness Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement, shall begin on Statement will not be "reviewed," or not be subject to further review) and to keep such Registration Statement continuously effective under the Securities Act until such date as is the earlier of (x) the date hereof and continue until when all the Registrable Securities covered by such Registration Statement have been sold or (y) with respect to any Holder, such time as all Registrable Securities held by such Holder may be sold without any restrictions restriction pursuant to Rule 144, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effectletter, addressed and reasonably acceptable to the Company’s 's transfer agent to such effect (the “Registration "Effectiveness Period”"). No For purposes of the obligations of the Company under this Agreement, no Registration Statement shall register be considered "effective" with respect to any security Registrable Securities unless such Registration Statement lists the Holders of such Registrable Securities as "Selling Stockholders" and includes such other than information as is required to be disclosed with respect to such Holders to permit them to sell their Registrable Securities pursuant to such Registration Statement, unless any such Holder is not included as a "Selling Stockholder" pursuant to Section 3(m). Upon the initial filing thereof, the Registration Statement shall cover at least 100% of the Purchased Shares and 100% of the Warrant Shares. Such Registration Statement also shall cover, to the extent allowable under the Securities Act and the Rules promulgated thereunder (including Securities Act 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.
(b) Within 10 days after the Company consummates a “Fundamental Transaction” (as defined in the Certificate of Designations for the Convertible Preferred), the Company shall file a Registration Statement on Form S-3 (or, if the Company is ineligible to file on Form S-3, then on Form S-1) with respect to Investor’s resale of the Registrable Securities, and the Company shall use reasonable best efforts to cause the registration statement to be declared effective by the closing of the Fundamental Transaction. The Registration Statement (and any amendment or supplement) shall contain “Selling Stockholders” and “Plan of Distribution” sections, as specified by Investor. The Company shall use its best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the closing of the Fundamental Transaction (“Initial Effectiveness Date”). By 9:30 a.m., New York time, on the Trading Day following the Initial Effectiveness Date, the Company shall file with the SEC, in accordance with Securities Act Rule 424 (“Rule 424”), the final Prospectus to be used in connection with sales pursuant to the Registration Statement. Before filing the Registration Statement, the Company shall furnish a draft of it to the Investor for its review and comment. The Company shall include Investor’s reasonable comments in the Registration Statement given within 48 hours of the receipt thereof from the Company.
(c) During the Registration Period, subject to Section 2(d), the Company shall, promptly, (i) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and related Prospectus to be filed pursuant to Rule 424, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, including with respect to changes in the “Selling Stockholders” and “Plan of Distribution” sections, as specified by the Investor; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement) and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond to any comments received from the SEC with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the SEC relating to the Registration Statement; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. In the case of amendments and supplements to the Registration Statement required to be filed pursuant to this Agreement (including pursuant to this Section 2(c)) by reason of the Company’s filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Securities Exchange Act, the Company shall incorporate such report by reference into the Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Registration Statement.
(d) Beginning 60 days after effectiveness of the Registration Statement, upon the advice of Company counsel in the form of a written opinion, for not more than 20 consecutive days or for a total of not more than 30 days in any 12-month period, the Company may suspend the use of any Prospectus included in the Registration Statement if the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or (ii) amend or supplement the Registration Statement or Related Prospectus so that the Registration Statement or Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading (an “Allowed Delay”); provided, that the Company shall promptly (x) notify the Investor in writing of the commencement (and the termination) of an Allowed Delay, but shall not (without the prior written consent of the Investor) disclose to the Investor any material nonpublic information giving rise to an Allowed Delay, (y) advise the Investor in writing to cease all sales under such Registration Statement until the end of the Allowed Delay, and (z) use its best efforts to terminate an Allowed Delay as promptly as practicable.
(e) For any calendar month or part of a month (“Delay Period”) that the Registration Statement has not been declared effective by the Initial Effectiveness Date, or, subject to Section 2(d), the Registration Statement is not effective or the Prospectus cannot be used or has not been filed pursuant to Rule 424, the Company shall, on the first day of each calendar month following the month in which a Delay Period occurs, pay Investor, as liquidated damages, and not as penalty, an amount equal to the product obtained by multiplying $20,000 by a fraction, the numerator of which shall be the number of days in that Delay Period, and the denominator of which is 30.
Appears in 1 contract
Sources: Investor Rights Agreement (Electric & Gas Technology Inc)