Second Registration Statement. The Company shall: (a) as soon as reasonably practicable, but in no event later than 10 business days (such date, the “Second Filing Deadline”) following the later of (i) the date on which the Company obtains the Contingent Warrant Approval and stockholder approval of the Proposed Charter Amendment, and (ii) the earlier of (A) the six month anniversary of the Closing Date or (B) a date on which the aggregate market value of the Common Stock held by non-affiliates of the Company is $75 million or more (and if such stockholder approval occurs after such date, the aggregate market value of the Common Stock held by non-affiliates of the Company has been $75 million or more at a date within 45 days prior to such stockholder approval) (the “Second RS Trigger”), prepare and file with the Commission the Registration Statement on Form S-3 (the “Second Registration Statement” and together with the First Registration Statement, the “Registration Statements”) relating to the resale of the Contingent Exercise Shares by the Purchaser and the Other Purchasers from time to time on The New York Stock Exchange, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions; (b) use its reasonable best efforts, subject to receipt of necessary information from the Purchasers, to cause the Commission to declare the Second Registration Statement effective by the earlier of (i) 5 business days after the Commission has advised the Company that the Second Registration Statement has not been selected for review by the Commission, (ii) 5 business days after the Commission has advised the Company the Commission has no more comments with respect to the Second Registration Statement or (iii) 90 days after the Second RS Trigger (each of (i), (ii) and (iii), the “Second RS Effective Deadline”); (c) by 9:30 a.m., New York City time, on the second business day following the date the Second Registration Statement is declared effective by the Commission, file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Second Registration Statement; (d) promptly prepare and file with the Commission such amendments and supplements to the Second Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Second Registration Statement effective until the earlier of (i) the date as of which the Investors may sell all of the Registrable Securities covered by such Second Registration Statement without restriction pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act or (ii) the date on which the Investors shall have sold all of the Registrable Securities covered by the Second Registration Statement; (e) furnish to the Purchaser with respect to the Registrable Securities, the resale of which is registered under the Second Registration Statement (and to each underwriter, if any, of such Securities), such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser; and (f) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.
Appears in 1 contract
Sources: Unit Purchase Agreement (Flotek Industries Inc/Cn/)
Second Registration Statement. The Company shall:
(a) as soon as reasonably practicable, but in no event later than 10 business days (such date, the “Second Filing Deadline”) following the later of (i) the date on which the Company obtains the Contingent Warrant Approval and stockholder approval of the Proposed Charter Amendment, and (ii) the earlier of If (A) the six month anniversary of the Closing Date or Second Registration Statement is (B) not filed with the Commission on or before the either the Second Filing Deadline (a date on which the aggregate market value of the Common Stock held by non-affiliates of the Company is $75 million or more (and if such stockholder approval occurs after such date, the aggregate market value of the Common Stock held by non-affiliates of the Company has been $75 million or more at a date within 45 days prior to such stockholder approval) (the “Second RS TriggerFiling Failure”), prepare and file with or (C) is not declared effective by the Commission on or before the Registration Statement on Form S-3 Second RS Effectiveness Deadline (the an “Second Registration Statement” and together with the First Registration Statement, the “Registration StatementsEffectiveness Failure”) relating to or (D) on any day after the resale Effective Date sales of all of the Contingent Exercise Shares by the Purchaser and the Other Purchasers from time required to time be included on The New York Stock Exchange, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts, subject to receipt of necessary information from the Purchasers, to cause the Commission to declare the such Second Registration Statement effective by the earlier of cannot be made (iother than during an Allowable Suspension Period (as defined in Section 5.11)) 5 business days after the Commission has advised the Company that the Second Registration Statement has not been selected for review by the Commission, (ii) 5 business days after the Commission has advised the Company the Commission has no more comments with respect to the Second Registration Statement or (iii) 90 days after the Second RS Trigger (each of (i), (ii) and (iii), the “Second RS Effective Deadline”);
(c) by 9:30 a.m., New York City time, on the second business day following the date the Second Registration Statement is declared effective by the Commission, file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Second Registration Statement;
Statement or otherwise (d) promptly prepare and file with the Commission including as a result of a failure to keep such amendments and supplements to the Second Registration Statement and the prospectus used in connection therewith effective, to disclose such information as may is necessary for sales to be necessary made pursuant to keep the such Second Registration Statement effective until or to register a sufficient number of shares of Common Stock or to maintain the earlier of (i) the date as of which the Investors may sell all listing of the Registrable Securities shares of Common Stock) (a “Second Maintenance Failure”) then, as partial relief for the damages to any Investor by reason of any such delay in or reduction of its ability to sell such Contingent Exercise Shares (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each Investor relating to such Second Registration Statement an amount in cash equal to $0.005 per Contingent Exercise Share then held by the Investor, or issuable to such Investor upon exercise of Contingent Warrants held by the Investor, and covered by such Second Registration Statement without restriction pursuant to Rule 144 on each of the following dates: (i) the day of a Second Filing Failure and without on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act or date such Second Filing Failure is cured; (ii) the day of an Second Effectiveness Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such Second Effectiveness Failure is cured; and (iii) the initial day of a Second Maintenance Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such Second Maintenance Failure is cured. The payments to which the Investors an Investor shall have sold all of the Registrable Securities covered by the Second Registration Statement;
(e) furnish be entitled to the Purchaser with respect pursuant to the Registrable Securities, the resale of which is registered under the Second Registration Statement (and to each underwriter, if any, of such Securities), such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser; and
(f) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchaser; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.this
Appears in 1 contract
Sources: Unit Purchase Agreement (Flotek Industries Inc/Cn/)
Second Registration Statement. The Company shall:
Subject to the consummation of the Third Closing (aas defined in the Purchase Agreement), on or prior to 15 days following the Third Closing Date (as defined in the Purchase Agreement) as soon as reasonably practicable, but in no event later than 10 business days (such date, the “Second Filing Deadline”) following ” and together with the later of (i) the date on which the Company obtains the Contingent Warrant Approval and stockholder approval of the Proposed Charter AmendmentFirst Filing Deadline, and (ii) the earlier of (A) the six month anniversary of the Closing Date or (B) a date on which the aggregate market value of the Common Stock held by non-affiliates of the Company is $75 million or more (and if such stockholder approval occurs after such dateas applicable, the aggregate market value of the Common Stock held by non-affiliates of the Company has been $75 million or more at a date within 45 days prior to such stockholder approval) (the “Second RS TriggerFiling Deadline”), the Company shall prepare and file with the Commission the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of the Registrable Third Closing Securities) for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Second Shelf Registration Statement” and together with the First Shelf Registration Statement, the as applicable, a “Shelf Registration StatementsStatement”) relating to the resale of the Contingent Exercise Shares by the Purchaser and the Other Purchasers from time to time on The New York Stock Exchange, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions;
(b) use its reasonable best efforts)). Such Second Shelf Registration Statement shall, subject to receipt the limitations of necessary information Form S-3, include the aggregate amount of Registrable Third Closing Securities to be registered therein and shall contain (except if otherwise required pursuant to written comments received from the Purchasers, to cause the Commission to declare the upon a review of such Second Shelf Registration Statement effective by the earlier of (iStatement) 5 business days after the Commission has advised the Company that the Second Registration Statement has not been selected for review by the Commission, (ii) 5 business days after the Commission has advised the Company the Commission has no more comments with respect to the Second Registration Statement or (iii) 90 days after the Second RS Trigger (each of (i), (ii) and (iii), the “Second RS Effective Deadline”);
(c) by 9:30 a.m., New York City time, on Plan of Distribution” in substantially the second business day following form attached hereto as Annex A. To the date extent the Second Registration Statement is declared effective by staff of the Commission, file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Second Registration Statement;
(d) promptly prepare and file with the Commission such amendments and supplements to the Second Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Second Registration Statement effective until the earlier of (i) the date as of which the Investors may sell SEC does not permit all of the Registrable Third Closing Securities covered by such to be registered on the Second Shelf Registration Statement without restriction filed pursuant to Rule 144 this Section 2.1(a) or for any other reason any Registrable Third Closing Securities are not then included in a Registration Statement filed under this Agreement, the Company shall (i) inform each of the Holders thereof and without use its commercially reasonable efforts to file amendments to the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under Second Shelf Registration Statement as required by the Securities Act or Commission and/or (ii) withdraw the date Second Shelf Registration Statement and file a new registration statement (a “Second New Registration Statement” and together with the First New Registration Statement, as applicable, a “New Registration Statement”)), in either case covering the maximum number of Registrable Third Closing Securities permitted to be registered by the SEC, on which the Investors shall have sold all of Form S-3 or such other form available to register for resale the Registrable Third Closing Securities covered by the Second Registration Statement;
(e) furnish to the Purchaser with respect to the Registrable Securities, the resale of which is registered under the Second Registration Statement (and to each underwriter, if any, of such Securities), such number of copies of prospectuses and such other documents as the Purchaser may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities by the Purchaser; and
(f) file documents required of the Company for normal Blue Sky clearance in states specified in writing by the Purchasera secondary offering; provided, however, that prior to filing such amendment or Second New Registration Statement, the Company shall not be required obligated to qualify use its commercially reasonable efforts to do business or consent to service advocate with the SEC for the registration of process all of the Registrable Third Closing Securities in any jurisdiction in which it is not now so qualified or has not so consented.accordance with the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone Interpretations D.
Appears in 1 contract