Shelf 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 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. (b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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: a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”); b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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. (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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder. (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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission. (f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 3 contracts
Sources: Registration Rights Agreement (theMaven, Inc.), Registration Rights Agreement (theMaven, Inc.), Registration Rights Agreement (theMaven, Inc.)
Shelf Registration. (a) On or prior to each the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of 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 60% 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 Holder’s express prior written consent. Subject to the terms of this AgreementDeadline, the Company shall use its commercial reasonable best efforts to cause file with the SEC a Registration Statement filed under this Agreement (includingregistration statement on the applicable SEC form with respect to the resale from time to time, without limitationwhether underwritten or otherwise, under Section 3(c)) of the Registrable Securities by the Holders. The Company shall use its reasonable best efforts to be declared effective under the Securities Act as promptly as possible after the filing thereofrespond to all SEC comments, if any, related to such registration statement but in any event no later than within two weeks of the applicable Effectiveness Datereceipt thereof, and shall use its commercial reasonable best efforts to keep obtain all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all of the Holders’ Registrable Securities, including causing such registration statement to be declared effective by the SEC as soon as practicable after filing and no later than the Effectiveness Deadline. The Company shall use its reasonable best efforts to maintain the effectiveness of the registration effected pursuant to this Section 2.1(a) at all times. The registration contemplated by this Section 2.1(a) is referred to herein as the “Mandatory Registration.” The Mandatory Registration Statement continuously effective shall be filed with the SEC in accordance with and pursuant to Rule 415 promulgated under the Securities Act as (or any successor rule then in effect) (a “Shelf Registration”). The Company shall use its reasonable best efforts to a Holder cause the registration statement or statements filed hereunder to remain effective until such date (the “Shelf Termination Date”) that is the earlier of (i) the date on which all Registrable Securities included in the registration statement shall have been publicly sold or shall have otherwise ceased to be Registrable Securities and (ii) the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-manner of sale restrictions pursuant to under Rule 144 144, and without the requirement for the Company to be in compliance with the current public information requirement requirements under Rule 144144(c)(1) (or Rule 144(i)(2), if applicable), as determined by the counsel to the Company. In the event the Mandatory Registration must be effected on Form S-1 or any similar long-form registration as the Company pursuant may elect or is required to use, such registration shall nonetheless be filed as a written opinion letter to such effect, addressed and acceptable to the Transfer Agent Shelf Registration and the affected Holders (Company shall use its reasonable best efforts to keep such registration current and effective, including by filing periodic post-effective amendments to update the “Effectiveness Period”)financial statements contained in such registration statement in accordance with Regulation S-X promulgated under the Securities Act until the Shelf Termination Date. The Company shall telephonically not include in the Mandatory Registration any securities which are not Registrable Securities without the prior written consent of the holders of at least a majority of the Registrable Securities included in such registration. The Company shall request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) time on a Trading Business Day. The Company shall promptly notify the Holders via facsimile or by e-electronic mail of a “.pdf” format data file of the effectiveness of a Registration Statement no later than within one (1) Trading Business Day that of the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration StatementEffective Date. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) Trading time on the first Business Day after the effective date of such Registration StatementEffective Date, file a final Prospectus with the Commission Commission, as required by Rule 424424(b).
(b) Notwithstanding the registration obligations set forth in this Section 2(a)2.1, if in the Commission event the SEC informs the Company that all of the Registrable Securities then outstanding cannot, as a result of the application of Rule 415415 of the Securities Act, 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 Initial Registration Statement initial registration statement as required by the CommissionSEC and/or (ii) withdraw the initial registration statement and file a new registration statement, in either case covering the maximum number of Registrable Securities permitted to be registered by the CommissionSEC, on Form S-3 ▇-▇, ▇▇▇▇ ▇-▇ or such other form available to the Company to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendmentamendment or new registration statement, the Company shall be obligated to use diligent its commercially 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.
(c) . Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)Agreement, if the Commission or any SEC Guidance sets forth a limitation on of the number of Registrable Securities or other shares of Common Stock 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 SEC for the registration of all or a greater portion number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities or other shares of Common Stock to be registered on such Registration Statement registration statement will be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 allotmentbasis. In the event the Company amends the Initial Registration Statement in accordance with initial registration statement or files a new registration statement, as the foregoingcase may be, under clauses (i) or (ii) above, the Company will use its best commercially reasonable efforts to file with the CommissionSEC, as promptly as allowed by Commission SEC 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 the Company to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statementinitial registration statement, as amended, or the new registration statement.
(dc) If: (i) the Initial Registration Statement initial registration statement required to be filed pursuant to Section 2.1(a) is not filed with the SEC on or prior to its the 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, the Company shall be deemed to have not satisfied this clause (i))Deadline, or (ii) the Company fails initial registration statement required to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission be filed pursuant to the Securities Act, within five (5Section 2.1(a) 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 twenty-five (25) calendar 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 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, SEC (or (votherwise does not become effective) after the effective date of a Registration Statement, such Registration Statement ceases for any reason on or prior 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) calendar days (which need not be consecutive calendar days) during any 12-month period Effectiveness Deadline (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) and (iv),” and, 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) calendar day period, as applicable, is exceeded being referred to as an “Event Date”” for purposes of this Section 2.1(c)), then, 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 curedDate, the Company shall pay one time to each Holder an amount in cash, as partial liquidated damages and not as a penaltypenalty (“Liquidated Damages”), equal to 1% of the product of 1.0% multiplied purchase price paid (in cash or by the aggregate Subscription Amount paid conversion) for any Registrable Securities held by such Holder pursuant to on the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in fullEvent Date. 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. Notwithstanding parties agree that notwithstanding anything to the contrary herein or in this Agreement or the Purchase Investment Agreement, the maximum amount of liquidated damages that a Holder may receive no Liquidated Damages shall not exceed 6% be payable if as of the Subscription Amount relevant Event Date, the Registrable Securities may be sold by non-affiliates without volume or manner of sale restrictions under Rule 144 and the Company is in compliance with the current public information requirements under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), as determined by counsel to the Company. The Effectiveness Deadline for a Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the registration statement on a timely basis results from the failure of an Investor to timely provide the Company with information requested by the Company and necessary to complete the registration statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such HolderInvestor).
(ed) If In the event that 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 maximum number of Registrable Securities as contemplated by Section 2.1(b) on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable (by amendment or otherwise) promptly after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement registration statement then in effect until such time as a Registration Statement registration statement on Form S-3 (or amendment) covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Seacoast Banking Corp of Florida), Investment Agreement (Seacoast Banking Corp of Florida), Registration Rights Agreement (Seacoast Banking Corp of Florida)
Shelf 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 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 60an 85% majority in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A A. The Company shall respond to any comments from the staff of the Commission within 15 days of the receipt of such comments. In the event the amount of Registrable Securities which may be included in the Registration Statement is limited due to SEC Guidance (provided that, the Company shall 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, the Section 612.09 of the Compliance and substantially Disclosure Interpretations) the “Selling Stockholder” section attached hereto Company shall use its best efforts to register such maximum portion of the Registrable Securities as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consentpermitted by SEC Guidance. Subject to the terms of this Agreement, the Company shall use its commercial 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 prior to the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and 144, without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, or not required to be registered in reliance upon the exemption in Section 4(a)(1) under the Securities Act, in either case as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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)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 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 first be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce by Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders), and second by Registrable Securities represented by the holders of Common Shares purchased by the Series Underlying Shares and Purchasers pursuant to the holders of the Debenture Shares, as applicable)Purchase Agreement. 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 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.
(db) 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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 declared effective, or (iv) If 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 StatementStatement (unless the sole reason for such non-registration of all or any portion of the Registrable Securities is solely as a result of SEC Guidance under Rule 415 or similar rule which limits the number of Registrable Securities which may be included in a registration statement with respect to the Holders), or (vii) 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 twenty-five (25) consecutive 30 calendar days or more than an aggregate of fifty (50) calendar days (which need not be consecutive calendar days) during any 12-month period 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 1% of the product of 1.0% multiplied by the aggregate Subscription Amount purchase price paid by such Holder pursuant to the Purchase AgreementAgreement up to a maximum of 6%, during which such Event continues uncured. 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase AgreementProvided, however, the maximum amount of foregoing liquidated damages that a Holder may receive shall not exceed 6% of accrue or be otherwise charged during any period in which the Subscription Amount of such Holder.
(eInvestor may sell all Shares on any given day under Rule 144, or in reliance upon the exemption in Section 4(1) If Form S-3 is not available for under the registration of the resale of Registrable Securities hereunderAct, 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 reasonably practicable or after such form is availableInvestor has publicly sold its Registrable Securities. Provided, provided further, no penalty shall accrue under this Section 2(b) in the event that the Company shall maintain elects to suspend the effectiveness use of the Prospectus or Registration Statement then under Section 3(c)(vi) for up to 30 days in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commissionany 365 day period.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 3 contracts
Sources: Registration Rights Agreement (Aspen Group, Inc.), Registration Rights Agreement (Aspen Group, Inc.), Registration Rights Agreement (Aspen Group, Inc.)
Shelf Registration. (a) On or prior Subject to each Filing DateSection 4.1 hereof, the Company shall prepare and file with the Commission a Registration Statement covering SEC on or before the resale of all date that is thirty (30) days prior to the third anniversary of the Registrable Securities that are not then registered on an effective date hereof a 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 Shelf Rules to register for resale under the 1933 Act resales or other dispositions of the Registrable Securities on Form S-3, in which case Shares by the Manufacturers. As promptly as practicable after filing 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 60% 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 Holder’s express prior written consent. Subject to the terms of this AgreementRegistration Statement, the Company shall use its commercial best efforts to cause a such Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective by the SEC on or before the third anniversary of the date hereof, or as soon thereafter as is practicable, and maintain the effectiveness of the Registration Statement for sixty (60) days. The Company shall not permit any holder of Registrable Securities or any other holder of registration rights to "piggyback" on such Registration Statement without the written consent of each of the Manufacturers.
(b) Subject to Section 4.1 hereof, and provided that the Manufacturers are entitled to transfer Shares pursuant to Section 2.2(a)(vi) of the Standstill Agreement, if either Manufacturer requests in writing prior to the date that is one year from the date that the Alternative Transaction is consummated that the Company file a Registration Statement pursuant to this Section 2.1(b), the Company shall promptly give notice of such requested registration to the other Manufacturer and shall file with the SEC within thirty (30) days of such request (PROVIDED that if such Registration Statement is not ultimately utilized by the Manufacturer so requesting, such Manufacturer shall pay the Company's reasonable Registration Expenses in connection therewith) a Registration Statement for an offering to be made pursuant to the Shelf Rules to register under the Securities 1933 Act resales or other dispositions of up to that number of Registrable Shares that the Manufacturers are entitled to transfer pursuant to Section 2.2(a)(vi) of the Standstill Agreement; PROVIDED, HOWEVER, that the Company shall not be obligated to effect more than one (1) registration pursuant to this Section 2.1(b). The Company shall use its best efforts to cause such Registration Statement to be declared effective by the SEC as promptly soon as possible after is practicable, and maintain the filing thereofeffectiveness of such Registration Statement for as long as necessary to dispose of such Registrable Shares under Section 2.2 of the Standstill Agreement, but in any event for no later more than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement sixty (i60) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”)days. The Company shall telephonically request not permit any holder of Registrable Securities or any other holder of registration rights to "piggyback" on such Registration Statement without the written consent of each of the Manufacturers.
(c) Subject to Section 4.1 hereof, and provided that (i) the Manufacturers are entitled to transfer Shares pursuant to Section 2.2(a)(vii) of the Standstill Agreement, (ii) CVX Holdco, LLC has sought or received payments from the Manufacturers under the CVX Guaranty that exceed five million dollars ($5,000,000) in the aggregate (excluding any amounts previously paid with the proceeds of Registrable Shares released pursuant to Section 2.2(a)(vii) of the Standstill Agreement and any amounts previously paid upon the expiration of the 30-day period of effectiveness of a prior Registration Statement as under this Section 2.1(c) for resales of 5:00 p.m. Registrable Shares referred to in Section 2.1(b)(ii)(A) of the CVX Guaranty because a Manufacturer failed or refused to sell Registrable Securities under such Registration Statement) (New York City timethe "Requested Payments") on a Trading Day. The and (iii) the Manufacturers are not at the time of such request permitted under Rule 144 to sell Registrable Shares with an aggregate fair market value at such time equal to or greater than the Requested Payments, the Company shall promptly notify as soon as practicable file with the Holders via facsimile or by e-mail of the effectiveness of SEC a Registration Statement no later than for an offering to be made pursuant to the Shelf Rules to register under the 1933 Act resales or other dispositions of a number of Registrable Shares with a fair market value that is equal to the sum of one hundred twenty percent (1120%) Trading Day that of the Company telephonically confirms effectiveness payment obligation incurred to CVX Holdco, LLC under the CVX Guaranty by the Manufacturers entitled to transfer Registrable Shares and the amount of Registration Expenses to be paid by the Manufacturers in connection with such registration. The fair market value of the Commission, which Registrable Shares shall be the date requested average closing price of the Company Common Stock on the Nasdaq Stock Market (or, if not so traded, on such other national or foreign stock market or automated quotation system on which the Company's Common Stock is regularly traded) for the five (5) trading day period ending two (2) trading days prior to the effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 shall 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for cause 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 SEC as soon as is practicable, and maintain the Effectiveness Date effectiveness of the Initial Registration Statement, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason as long as necessary 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 dispose of such Registrable SecuritiesShares under Section 2.2 of the Standstill Agreement, but in any event for no more than twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) calendar days days. In no event shall the net aggregate value (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”, exclusive of underwriter's fees and for purposes brokerage commissions and the amount 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted Registration Expenses to be paid by applicable lawthe Manufacturers in connection with such registration) of the Registrable Shares sold under a Registration Statement filed pursuant to Section 2.2(a)(vii) of the HolderStandstill Agreement be greater than the payment obligation to CVX Holdco, accruing daily from LLC incurred under the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in fullCVX Guaranty. The partial liquidated damages Manufacturer or Manufacturers entitled to sell Registrable Shares under a Registration Statement filed pursuant to Section 2.2(a)(vii) of the terms hereof Standstill Agreement shall apply on a daily pro rata basis for any portion of a month prior to promptly pay the cure of an EventCompany's reasonable Registration Expenses in connection with such Registration Statement. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive The Company shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 is not available for the registration of the resale permit any holder of Registrable Securities hereunder, the Company shall (i) register the resale or any other holder of the Registrable Securities registration rights to "piggyback" on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holdereach of the Manufacturers. This Section 2.1(c) shall be applicable each time a Requested Payment or Requested Payments exceed five million dollars ($5,000,000) in the aggregate.
Appears in 2 contracts
Sources: Registration Rights Agreement (New Commerce One Holding Inc), Registration Rights Agreement (Commerce One Inc)
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a one or more Registration Statement Statements covering the resale of 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 6085% in interest of the Holders) substantially the “Plan of Distribution” section attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial commercially reasonable 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 commercial commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144144 or otherwise, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one on the second (12nd) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as and if required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). In the event of a cutback hereunder, the Company shall give the Holder at least five two (52) Trading Days prior written notice along with the calculations as to such HolderH▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any twelve (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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 2(d) in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 1218.0% 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. Notwithstanding anything to the contrary herein, in this Agreement or no event shall the Purchase Agreement, the maximum aggregate amount of liquidated damages that a (excluding interest) payable to the Holder may receive shall not exceed 6pursuant to this Section 2(d) exceed, in the aggregate, 10.0% of the Subscription Amount of such Holderaggregate purchase price paid by the Purchasers for the Securities issued at Closing.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (DiaMedica Therapeutics Inc.), Registration Rights Agreement (DiaMedica Therapeutics Inc.)
Shelf Registration. No later than the Lockup Termination Date of the earlier to occur of (ai) On an IPO of the Company, or prior to each (ii) a Demand Offering (and in the case of a Demand Offering, if no Company lock-up exists, then ninety (90) calendar days following the Effective Date of such Demand Offering) (such date, the “Filing DateDeadline”), the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the outstanding Registrable Securities that are not then registered on already covered by an effective Registration Statement for an offering to be made on a delayed or continuous basis pursuant to SEC Rule 415415 or, if SEC Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of the Registrable Securities as the Holders may reasonably specify (the “Initial Registration Statement”). Each The Initial Registration Statement filed hereunder shall be on Form S-3 F-3 (except if the Company is not then eligible ineligible to register for resale the Registrable Securities on Form S-3F-3, in which case such registration shall be on another appropriate Form F-1 or such other form in accordance herewithavailable to register for resale the Registrable Securities as a secondary offering), subject to the provisions of Section 2(eSubsection 2.1(e)) , and shall contain (unless except if otherwise directed by at least 60% in interest required pursuant to written comments received from the Commission upon a review of the Holderssuch Registration Statement) substantially the “Plan of Distribution” section 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) which may be sold without volume or manner-of-sale restrictions pursuant modified to Rule 144 and without the requirement for the Company respond to be in compliance with the current public information requirement under Rule 144comments, as determined if any, provided by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”Commission). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in this Section 2(a)2, if in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of SEC Rule 415, be registered for resale as a secondary offering on a single registration statementRegistration Statement, the Company agrees to promptly (i) inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the CommissionCommission and/or (ii) withdraw the Initial 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 Commission, on Form S-3 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendmentamendment or New Registration Statement, the Company shall be obligated to use diligent its commercially 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.
(c) the Manual of Publicly Available Telephone Interpretations D.29. Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)Agreement, if the Commission or any SEC Guidance sets forth a limitation on of 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 number 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 first be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than by Registrable Securities and, if included on a Registration Statement, not acquired pursuant to the Investment Agreement (whether pursuant to registration rights or otherwise) and second by Registrable Securities represented by shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares shares of Common Stock may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares shares of Common Stock held by such Holders, subject to a determination by the holders Commission that certain Holders must be reduced first based on the number of the Series Underlying Shares and the holders shares of the Debenture Shares, as applicableCommon Stock 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 or files a New Registration Statement, as the foregoingcase may be, under clauses (i) or (ii) above, the Company will use its best commercially reasonable 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 Registration Statements on Form S-3 F-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.
(d) If: (i) , or the Initial New Registration Statement is not filed on or prior to its Filing Date (if the “Remainder Registration Statements”). The Company files the Initial shall cause each Registration Statement without affording required to be filed by the Holders Filing Deadline and to be declared effective by the opportunity to review and comment on Commission no later than the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause Effectiveness Deadline (i)), or (ii) the Company fails to file including filing with the Commission a request for acceleration of a Registration Statement effectiveness in accordance with Rule 461 promulgated by the Commission pursuant to under the 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 and shall use its reasonable best efforts to keep each Registration Statement will not be continuously effective under the Securities Act for so long as Registrable Securities remain outstanding (the “reviewed” or will not be subject to further review, or (iii) prior to the effective date Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement, Statement as of 5:00 P.M. New York City time on a Trading Day. The Company shall promptly notify 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 twenty-five (25) calendar days after the receipt of comments by Holders via facsimile or notice from the Commission that such amendment is required in order for 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, or (v) after the effective date electronic mail 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 twenty-five (25) consecutive calendar days or more than an aggregate “.pdf” format data file of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by same Trading Day that the Company telephonically confirms effectiveness with the Commission.
(f) Notwithstanding anything to , which date of confirmation shall initially be the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent date requested for effectiveness of such HolderRegistration Statement. The Company shall, by 9:30 A.M. New York City time on the first Trading Day after the Effective Date, file a final Prospectus with the Commission, as required by Rule 424(b). Failure to so notify the Holders on or before the second Trading Day after such notification or effectiveness or failure to file a final Prospectus as aforesaid shall be deemed an Event under Subsection 2.1(c).
Appears in 2 contracts
Sources: Registration Rights Agreement (Addex Therapeutics Ltd.), Registration Rights Agreement (Addex Therapeutics Ltd.)
Shelf 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 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 6085% 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 BA; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without 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, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included by any Person other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Holder;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.[Reserved]
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Vitality Biopharma, Inc.), Registration Rights Agreement (Vitality Biopharma, Inc.)
Shelf 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 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(e2(d)) and shall contain (unless otherwise directed by at least 60% in interest of the HoldersPurchaser) substantially the such “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto disclosures as Annex Brequired by the instructions to Form S-3; provided, however, that no the Holder shall not be required to be named as an “underwriter” without such the Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders Holder (the “Effectiveness Period”). 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 promptly immediately notify the Holders Holder via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 Holder 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(e2(d); 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 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)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 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 Securitiesthe Holder, 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, Second the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 the 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 or (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(fe) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any the Holder or affiliate of a the Holder as any an Underwriter without the prior written consent of such the Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (T Stamp Inc), Registration Rights Agreement (T Stamp Inc)
Shelf 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 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 6051% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail to the facsimile number or e-mail address set forth in the Purchase Agreement of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Conversion Shares and the holders of the Debenture Shares, as applicableheld 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (SOCIAL REALITY, Inc.), Registration Rights Agreement (SOCIAL REALITY, Inc.)
Shelf Registration. (a) On Promptly following the Closing Date but in any event on or prior to each the Filing DateDeadline, the Company shall prepare and file with the Commission SEC a Registration Statement registration statement under the Securities Act covering the resale of 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 415415 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 Holders may reasonably specify, in respect of which the Company may use a Form S-3 registration statement (or any successor short form registration statement available for such resale that permits incorporation by reference at least to the same extent as such form) (“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 Securities (together with the Form S-3, the “Registration Statement”). Each The Registration Statement filed hereunder shall be on Form S-3 not include any shares of Common Stock or other securities for the account of any other holder without the prior written consent of the Required Investors, except for shares of Common Stock the Company is required to register under its registration rights agreements in effect at the date hereof. The Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case SEC upon a review of such registration shall be on another appropriate form in accordance herewith, subject to the provisions of Section 2(e)Registration Statement) and shall contain (unless otherwise directed by at least 60% in interest of the Holders) substantially the a “Plan of Distribution” section in substantially the form attached hereto as Annex Exhibit A and a “Selling Stockholders” section in substantially the “Selling Stockholder” section form attached hereto as Annex Exhibit B; provided, however, that no Holder 1 shall be required to be named as an “underwriter” in the Registration Statement without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages except that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time be named as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission“statutory underwriter” if such Holder is, or is affiliated with, a broker dealer and states such fact in its Selling Stockholder Questionnaire.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Kadmon Holdings, Inc.), Registration Rights Agreement (Kadmon Holdings, Inc.)
Shelf Registration. (a) On or prior to Promptly following (and in no event more than ten business days after) each Filing of (i) the Closing Date, and (ii) any Qualified Exercise Date, the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of (x) in the case of the Closing Date (the “Initial Registration Statement”), all of the Registrable Securities, and (y) in the case of a Qualified Exercise Date (a “Subsequent Registration Statement”), all of the Registrable Warrant Securities that are not then registered on an effective Registration Statement issued in connection with the related exercise of the Warrant, in each case for an offering to be made on a continuous basis pursuant to Rule 415. Each In the event any Warrant Shares are outstanding prior to the effectiveness of the Initial Registration Statement, such Registrable Warrant Securities shall be registered for resale pursuant to the Initial Registration Statement; provided, however, that nothing in this sentence shall be construed to mean that the Company is otherwise relieved of its continuing obligations to register Registrable Warrant Securities as contemplated by Section 3(a)(ii)(y) above. Notwithstanding anything to the contrary, the maximum number of Subsequent Registration Statements the Company shall be required to file pursuant to this Section 3(a) shall be one such Registration Statement filed in any twelve-month period.
(b) The Registration Statements required hereunder shall be on Form S-3 (S-3, or its successor form, except if the Company is not then eligible to register for resale the Registrable Securities or Registrable Warrant Securities on Form S-3, in which case such registration the Registration Statement shall be on another Form S-1, or its successor form or other appropriate form in accordance herewith, subject that is substantially similar to the provisions of Section 2(e)) and Form S-1. The Registration Statements required hereunder shall contain (unless otherwise directed by at least 60% 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 Holder’s express prior written consent. Exhibit A. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable efforts to cause a each 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 not later than the applicable Effectiveness Date, and shall use its commercial best commercially reasonable efforts to keep such the Registration Statement Statements continuously effective under the Securities Act as to a Holder until the date that the when all Registrable Securities of or Registrable Warrant Securities, as the Holder case may be, covered by such the Registration Statement (i) have been sold, thereunder or sold pursuant to Rule 144, or (ii) have been sold pursuant to an effective registration statement, or (iii) have been sold or may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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 The respective Holders, other than transferee Holders who are not entitled to registration rights under Section 9(c), shall be named as the selling shareholders (collectively, the “Selling Shareholders”) in the respective Registration Statement and the related Prospectus in such a manner as to permit such Persons to deliver such Prospectus to purchasers of Registrable Securities or Registrable Warrant Securities, as the case may be, in accordance with applicable law. None of the Company’s shareholders, other than the Selling Shareholders, shall have the right to sell any other provision of this Agreement and subject the Company’s securities pursuant to the payment of liquidated damages any Registration Statement effected pursuant to Section 2(d3(a), 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(d) If: No Selling Shareholder may participate in any underwritten distribution under a Registration Statement filed pursuant to this Section 3, unless such Selling Shareholder (i) agrees to sell its Registrable Securities or Registrable Warrant Securities, as 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 case may be, on the same as required basis provided in any underwriting arrangements approved by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration Holders of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 declared effective, or (iv) a Registration Statement registering for resale all majority of the Registrable Securities is not declared effective and/or Registrable Warrant Securities covered by the Commission by the Effectiveness Date of the Initial applicable Registration Statement, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the date on which terms of such five (5) Trading Day period is exceededunderwriting arrangements, and for purpose of clause (iii) agrees to pay its pro rata share of all underwriting discounts and commissions and other fees and expenses of investment bankers and any manager or managers of such underwriting and legal expenses of the date which such twenty-five (25) calendar day period is exceeded, underwriter applicable with respect to Registrable Securities and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) calendar day period, as applicable, is exceeded being referred to as “Event Date”), thenRegistrable Warrant Securities, in addition each case 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 extent not have been cured payable 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Delta Products CORP), Registration Rights Agreement (Delta International Holding Ltd.)
Shelf Registration. (a) On At any time after the 12 month anniversary of the consummation by the Company of the IPO, upon receipt of a written request (the “Shelf Request”) from the Avista Entities that the Company file a “shelf” registration statement pursuant to Rule 415 under the Securities Act (the “Shelf Registration”) on Form S-3 (or prior any successor form to each Filing DateForm S-3, or any similar short-form registration statement), covering the resale of Registrable Securities, the reasonably anticipated gross proceeds from all resales covered thereunder of which would exceed $25,000,000, the Company shall prepare and file use its reasonable best efforts, consistent with the Commission a terms of this Agreement, to cause the Shelf Registration Statement covering to be filed with the resale SEC as soon as practicable (but in no event later than thirty (30) days of all its receipt of the Shelf Request) and to include all Registrable Securities that are not then held by the Avista Entities to be registered on an effective such form and (iii) use its reasonable best efforts, consistent with the terms of this Agreement, to cause such Shelf Registration Statement for an offering to be made on a continuous basis pursuant declared effective by the SEC as soon as possible. As soon as reasonably practicable after the IPO, the Company will use its reasonable best efforts, consistent with the terms of this Agreement, to Rule 415. Each Registration Statement filed hereunder shall be on qualify for and remain eligible to use 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 or a similar short-form in accordance herewith, subject to the registration. The provisions of Section 2(e)) 7.05 shall be applicable to each take-down from a Shelf Registration initiated under this Section 7.03 and shall contain (unless otherwise directed by any subsequent resale of Registrable Securities pursuant thereto; provided, that the gross proceeds from such take-down equal at least 60% $10,000,000.
(b) In connection with any proposed firmly underwritten resale of Registrable Securities by the Avista Entities which is not pursuant to a Demand Registration under Section 7.01 and with respect to which such Shelf Registration is expressly being utilized to effect such resale (an “Underwritten Shelf Take-down”), the Avista Entities must sell their Registrable Securities to the underwriters selected as provided in interest of Section 7.05(f) on the Holders) substantially the “Plan of Distribution” attached hereto same terms and conditions as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex Bapply to any other selling stockholders; provided, however, that no Holder such Person shall be required to be named as an “underwriter” without make any representations or warranties, or provide any indemnity, in connection with any such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed under this Agreement registration other than representations and warranties (including, without limitation, under Section 3(c)or indemnities with respect thereto) 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been soldsuch Person’s ownership of his, thereunder her or pursuant its Registrable Securities to Rule 144be transferred free and clear of all liens, or claims, and encumbrances, (ii) such Person’s power and authority to effect such transfer, and (iii) such matters pertaining to compliance with securities laws by such Person as may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 damagesreasonably requested; provided, further, however, that prior the obligation of such Person to filing indemnify pursuant to any such amendmentunderwriting arrangements shall be several, not joint and several, among such Persons selling Registrable Securities, and the liability of each such Person will be in proportion thereto, and provided, further, that such liability will be limited to, the Company shall be obligated to use diligent efforts to advocate with net proceeds received by such Person from the Commission for the registration sale of all of the his, her or its Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09pursuant to such registration.
(c) Notwithstanding The Company shall be liable for and pay all Registration Expenses in connection with each Shelf Registration, regardless of whether such Shelf Registration is effected, and 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 Underwritten Shelf Take-Down; provided that holders of Registrable Securities permitted shall pay all underwriting discounts, selling commissions, and stock transfer taxes applicable 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 sale of Registrable Securities), unless otherwise directed in writing and fees and disbursements of counsel for the Avista Entities, except for the fees and disbursements of the Avista Entities borne and paid 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 Registrable Securities and, if included on as a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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 amendedExpense.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company Management Stockholder will be permitted entitled to name participate with respect to any Holder shelf registration effected pursuant to this Section 7.03 or affiliate with respect to any resales of a Holder as securities pursuant to any Underwriter without the prior written consent of such Holdershelf registration.
Appears in 2 contracts
Sources: Stockholders Agreement (Armored AutoGroup Inc.), Stockholders Agreement (Armored AutoGroup Inc.)
Shelf Registration. (a) On or prior to each Filing As soon as reasonably practicable following the Effective Date, the Company shall prepare prepare, and as soon as reasonably practicable (taking into consideration any applicable SEC Guidance) after the Closing Date (or such later date as shall be mutually agreed by the Company and the Majority Holders), the Company shall file with the Commission SEC a “shelf” Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement (subject to Section 2.1(d)) for an offering to be made on a continuous basis pursuant to Rule 415. Each 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 Majority Holders may reasonably specify (the “Initial Registration Statement”); provided, however, that the Company may satisfy the foregoing obligation by preparing and filing with the Commission a Prospectus (or prospectus supplement) as part of a then-effective Automatic Shelf Registration Statement filed hereunder or a post-effective amendment thereto that covers the resale of all of the Registrable Securities (subject to Section 2.1(d)) on a continuous basis, in which case, the “Initial Registration Statement” shall be deemed to refer to such Automatic Shelf Registration Statement together with such Prospectus (or prospectus supplement). The Initial Registration Statement shall be on Form S-3 (except if the Company is not then eligible ineligible pursuant to SEC Guidance 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, Form S-1) subject to the provisions of Section 2(e)2.1(e) and the Prospectus (or prospectus supplement) covering the resale of Registrable Securities shall contain (unless except if otherwise directed by at least 60% in interest required pursuant to written comments received from the SEC upon a review of the Holderssuch Registration Statement) substantially the “Plan of Distribution” section in substantially the form 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) I. Notwithstanding the registration obligations set forth in this Section 2(a2.1(a) and Section 2.1(b), if in the Commission event the SEC 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 (i) inform each of the Holders thereof and use its commercially reasonable best efforts to file amendments to the Initial Registration Statement as required by the CommissionSEC or (ii) withdraw the Initial 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 CommissionSEC, 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(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 amendmentamendment or New Registration Statement, the Company shall be obligated to use diligent its reasonable best efforts to advocate with the Commission SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Section 612.09 of the Compliance and Disclosure Interpretation 612.09.
(c) Interpretations of the staff of the Division of Corporation Finance with respect Rule 415, dated January 26, 2009. Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)Agreement, if the Commission or any SEC Guidance sets forth a limitation on of 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 reasonable best efforts to advocate with the Commission SEC for the registration of all or a greater portion number 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares Registrable Securities held by such Holders, subject to any determination by the holders SEC that certain Holders must be reduced first based on the number of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 Registrable Securities held by such Holder’s allotmentHolders. In the event the Company amends the Initial Registration Statement in accordance with or files a New Registration Statement, as the foregoingcase may be, under clauses (i) or (ii) above, the Company will use its reasonable best efforts to file with the CommissionSEC, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in generalGuidance, one or more registration statements on Form S-3 or (except if the Company is then ineligible to register for resale the Registrable Securities on Form S-3, in which case such other form available registrations shall be on Form S-1) to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement.
(b) The Company shall use its reasonable best efforts (i) to cause the Initial Registration Statement (as may be amended) or the New Registration Statement, as applicable, to become or to be declared effective as soon as reasonably practicable following the Closing Date, (ii) with respect to each other Registration Statement filed pursuant to Section 2.1(a), to cause each such Registration Statement to become or to be declared effective as soon as reasonably practicable after the filing thereof, and (iii) subject to Section 2.3(a) hereof, to keep each Registration Statement continuously effective under the Securities Act until the earlier of (x) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders or (y) the date on which all Shares covered by such Registration Statement cease to be Registrable Securities hereunder (the “Effectiveness Period”).
(c) The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall comply with the requirements of the Securities Act and the rules and regulations promulgated thereunder and shall not contain 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 (in the case of Prospectuses, in the light of the circumstances in which they were made) not misleading. Each Registration Statement shall also cover, to the extent allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional Ordinary Shares resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities.
(d) If: Each Holder agrees to furnish to the Company a completed Questionnaire in substantially the form attached to this Agreement as Annex II (ia “Selling Shareholder Questionnaire”) the Initial Registration Statement on a date that 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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within less than five (5) Trading Business 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 filing of a Registration Statement, with any such changes thereto acceptable to the Company. Each Holder further agrees that it shall not be entitled to be named as a selling securityholder in a Registration Statement or use the Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has returned to the Company fails a completed and signed Selling Shareholder Questionnaire. Similarly, Davy agrees that (x) no Davy Nominee Holder shall be entitled to file be named as a selling securityholder in a Registration Statement unless such Davy Nominee Holder has returned to the Company a completed and signed Selling Shareholder Questionnaire, (y) the Company is under no obligation to name any Davy Nominee Holder as a selling securityholder in a Registration Statement or to include any Shares beneficially owned by such Davy Nominee Holder therein unless and until a completed Selling Shareholder Questionnaire signed by such Davy Nominee Holder has been returned to the Company and (z) Davy may not use the Prospectus for offers and resales of Shares held by Davy on behalf of or as nominee for any Davy Nominee Holder that has not been named as a selling securityholder therein. If a Holder of Registrable Securities or a Davy Nominee Holder returns a Selling Shareholder Questionnaire after the deadline specified in the previous sentence, the Company shall use its reasonable best efforts to take such actions as are required to name such Holder or Davy Nominee Holder, as applicable, as a selling securityholder in the Registration Statement or any pre-effective or post-effective amendment thereto and otherwise respond to include (to the extent not theretofore included) in writing to comments made by the Commission in respect of such Registration Statement within twenty-five (25) calendar 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 declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities is identified in such late Selling Shareholder Questionnaire; provided, however, that the Company shall not declared in any event be obligated to (i) effect more than two (2) such post-effective by amendments under this Section 2.1(d) in any twelve-month period (each such post-effective amendment, a “Holder POSAM”) or (ii) file any Prospectus or prospectus supplement with the Commission by SEC for the Effectiveness Date purpose of naming additional Holders or Davy Nominee Holders as selling securityholders and/or including in the Registration Statement any Registrable Securities identified in late Selling Shareholder Questionnaires until the fourteenth (14th) day following the effectiveness of the Initial Registration Statement, or Statement and then not more frequently than once every thirty (v30) after days thereafter. Each Holder acknowledges and agrees that the effective date information in the Selling Shareholder Questionnaire will be used by the Company in the preparation of a the Registration Statement and hereby consents to the inclusion of such information in the 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If In the event that 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 Form S-1 or another appropriate form reasonably acceptable to the Majority Holders, and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that that, subject to Section 2.3(a) hereof, the Company shall maintain the effectiveness of the such Registration Statement that is on a form other than Form S-3 then in effect effect, until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the CommissionSEC.
(f) Notwithstanding anything Holders shall be entitled to offer and sell their Registrable Securities pursuant to an underwritten public offering provided that the aggregate amount of Registrable Securities to be offered and sold in such offering (i) represent not less than five percent (5%) of the total amount of Ordinary Shares outstanding at such time or (ii) are reasonably expected to result in aggregate gross proceeds of not less than $50 million (each such underwritten offering, a “Permitted Underwritten Offering”). In the event that Holders intend to sell Registrable Securities in a Permitted Underwritten Offering, the Holders intending to participate in any such Permitted Underwritten Offering (the “Participating Holders”) shall so notify the Company, which notice shall be delivered to the contrary contained hereinCompany not less than twenty (20) days prior to the date the underwriting agreement for such Permitted Underwritten Offering is entered into by the Company (the “Underwriting Notice”); provided, however, that no Underwriting Notice may be delivered to the Company until after the filing of the Initial Registration Statement. The managing underwriter(s) for any Permitted Underwritten Offering shall be selected by the Holders of a majority-in-interest of the Registrable Securities to be offered in such Permitted Underwritten Offering, with the consent of the Company (which consent shall not be unreasonably withheld). In connection with any Permitted Underwritten Offering, (x) the Company agrees, subject to clause (y), to enter into and perform its obligations under an underwriting agreement, in no event usual and customary form, with the managing underwriter(s) of such Permitted Underwritten Offering and (y) each Holder participating in such Permitted Underwritten Offering shall also enter into and perform its obligations under such underwriting agreement and such other documents reasonably required by the Company or such managing underwriter(s) to be permitted executed in connection therewith. Notwithstanding the foregoing: (A) if the Company furnishes to name the Participating Holders a certificate signed by the Company’s principal executive officer that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for a Permitted Underwritten Offering to be effected at such time, the Company shall have the right to defer such Permitted Underwritten Offering for a period of not more than sixty (60) days from the date of the Underwriting Notice, provided that the Company shall not exercise this deferral right more than once in any Holder or affiliate twelve (12) month period; (B) the Company shall not be obligated to take any action to effect any Permitted Underwritten Offering during the ninety (90) day period following the closing of any underwritten public offering of the Company’s securities (including a Holder as Permitted Underwritten Offering); and (C) the Company shall not be obligated to take any Underwriter without action to effect (a) more than two (2) Permitted Underwritten Offerings in any twelve (12) month period and (b) more than three (3) Permitted Underwritten Offerings during the prior written consent term of such Holderthis Agreement.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Jazz Pharmaceuticals PLC)
Shelf 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 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (theMaven, Inc.), Registration Rights Agreement (theMaven, Inc.)
Shelf 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 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 6051% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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, Date and shall use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, sold thereunder or pursuant to Rule 144, or (ii) may be sold pursuant to Rule 144 without volume or manner-of-sale restrictions and without current public information (including pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144144(i)(2)), as reasonably determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to Company; or (iii) two years from the Transfer Agent and the affected Holders Closing Date (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.Eastern
Appears in 2 contracts
Sources: Registration Rights Agreement (Freight Technologies, Inc.), Registration Rights Agreement (Hudson Capital Inc.)
Shelf Registration. (a) On Upon the earlier of (i) the expiration of any lock-up period following the completion of the Company’s second registered, Underwritten Offering following the IPO and (ii) the Second Anniversary, if any Holder so requests, or prior to each Filing at any time after one (1) year following the IPO Date, if the Shinsei Holders so request, the Company shall prepare and file use its reasonable best efforts to cause to be filed under the Securities Act with the Commission SEC, a Registration Statement covering the resale registration statement relating to sales of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering which the Company has received notice to be made on a continuous basis include in such registration statement, pursuant to Rule 415. Each Registration Statement filed hereunder shall 415 promulgated under the Securities Act, or any similar rule that may be on Form S-3 adopted by the SEC (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(ea “Shelf-Registration”)) and shall contain (unless otherwise directed by at least 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted obligated to name file a Shelf Registration prior to the later of the First Anniversary and such time as the Company is eligible to use Form S-3; provided, further, that, with respect to the Shinsei Holders, the Company shall not be obligated to file a Shelf Registration (i) after the Fifth Anniversary, or (ii) if (based on the then-current market prices) the number of shares of Registrable Securities specified in such notice would not yield gross proceeds to the selling stockholders of at least $5,000,000.
(b) Whenever the Company is required by this Section 2.1 to use its reasonable best efforts to effect the registration of Registrable Securities on Form S-3, each of the procedures and requirements of Section 2.9 hereof shall apply to such registration. The Company shall maintain the effectiveness of such Shelf Registration until the earlier of the date on which (i) all of the Registrable Securities included thereon has been sold, or (ii) until such Registrable Securities are no longer Registrable Securities. If, in connection with any Holder or affiliate intended offering off of a Holder as Shelf Registration, a managing underwriter advises the Company in writing that, in its view, the number of shares of Registrable Securities to be included in the Shelf Registration exceeds the number that can be included without having a material adverse effect on the Company, then, there shall be no limitation on the number of Shelf Registrations that the Company is obligated to effect under this Section 2.1 to cover all of the Registrable Securities then outstanding, either by the filing of a new Shelf Registration or through the addition of Registrable Securities to an existing Shelf Registration by prospectus supplement or otherwise; provided, however, that the Company shall not be required to file more than one registration statement on Form S-3 in any Underwriter without three-month period pursuant to this Section 2.1; provided, further, that, with respect to the prior written consent Shinsei Holders, the Company shall not be required to file more than two registration statements on Form S-3 in any twelve-month period pursuant to this Section 2.1.
(c) Upon notice to the Holders, the Company may postpone effecting a registration pursuant to this Section 2.1 for a reasonable time specified in such notice but not exceeding 75 days from the receipt of such Holdernotice, if (i) the Company’s Board of Directors (the “Board”) shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Board resolves in good faith would not be in the best interests of the Company.
(d) Upon notice to the Holders, the Company may terminate an existing Shelf Registration pursuant to this Section 2.1, if (i) the Company’s Board of Directors (the
Appears in 2 contracts
Sources: Registration Rights Agreement (Duff & Phelps Corp), Registration Rights Agreement (Duff & Phelps Corp)
Shelf Registration. (a) On Upon the earlier of (i) the expiration of any lock-up period following the completion of the Company’s second registered, Underwritten Offering following the IPO and (ii) the Second Anniversary, if any Holder so requests, or prior to each Filing at any time after one (1) year following the IPO Date, if the Shinsei Holders so request, the Company shall prepare and file use its reasonable best efforts to cause to be filed under the Securities Act with the Commission SEC, a Registration Statement covering the resale registration statement relating to sales of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering which the Company has received notice to be made on a continuous basis include in such registration statement, pursuant to Rule 415. Each Registration Statement filed hereunder shall 415 promulgated under the Securities Act, or any similar rule that may be on Form S-3 adopted by the SEC (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(ea “Shelf-Registration”)) and shall contain (unless otherwise directed by at least 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted obligated to name file a Shelf Registration prior to the later of the First Anniversary and such time as the Company is eligible to use Form S-3; provided, further, that, with respect to the Shinsei Holders, the Company shall not be obligated to file a Shelf Registration (i) after the Fifth Anniversary, or (ii) if (based on the then-current market prices) the number of shares of Registrable Securities specified in such notice would not yield gross proceeds to the selling stockholders of at least $5,000,000.
(b) Whenever the Company is required by this Section 2.1 to use its reasonable best efforts to effect the registration of Registrable Securities on Form S-3, each of the procedures and requirements of Section 2.9 hereof shall apply to such registration. The Company shall maintain the effectiveness of such Shelf Registration until the earlier of the date on which (i) all of the Registrable Securities included thereon has been sold, or (ii) until such Registrable Securities are no longer Registrable Securities. If, in connection with any Holder or affiliate intended offering off of a Holder as Shelf Registration, a managing underwriter advises the Company in writing that, in its view, the number of shares of Registrable Securities to be included in the Shelf Registration exceeds the number that can be included without having a material adverse effect on the Company, then, there shall be no limitation on the number of Shelf Registrations that the Company is obligated to effect under this Section 2.1 to cover all of the Registrable Securities then outstanding, either by the filing of a new Shelf Registration or through the addition of Registrable Securities to an existing Shelf Registration by prospectus supplement or otherwise; provided, however, that the Company shall not be required to file more than one registration statement on Form S-3 in any Underwriter without three-month period pursuant to this Section 2.1; provided, further, that, with respect to the prior written consent Shinsei Holders, the Company shall not be required to file more than two registration statements on Form S-3 in any twelve-month period pursuant to this Section 2.1.
(c) Upon notice to the Holders, the Company may postpone effecting a registration pursuant to this Section 2.1 for a reasonable time specified in such notice but not exceeding 75 days from the receipt of such Holdernotice, if (i) the Company’s Board of Directors (the “Board”) shall determine in good faith that effecting the registration would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in such notice the Board resolves in good faith would not be in the best interests of the Company.
(d) Upon notice to the Holders, the Company may terminate an existing Shelf Registration pursuant to this Section 2.1, if (i) the Company’s Board of Directors (the “Board”) shall determine in good faith that the existence of the Shelf Registration has a material adverse effect on the Company or (ii) the Company is in possession of material non-public information the disclosure of which the Board resolves in good faith would not be in the best interests of the Company.
Appears in 2 contracts
Sources: Registration Rights Agreement (Lovell Minnick Partners LLC), Registration Rights Agreement (Vestar Capital Partners Iv Lp)
Shelf 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 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 6085% 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 HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial commercially reasonable 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 commercial commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Placement Agent Warrant Shares (applied, in applied to the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Brokers on a pro rata basis based on the total number of unregistered Underlying SharesPlacement Agent Warrant Shares held by such Brokers);
c. Third, Series H underlying the Company shall reduce Registrable Securities represented by Warrant Shares and (applied to the Debenture Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders); and
d. Fourth, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five two (52) Trading Days prior written notice along with the calculations as to such HolderH▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its commercially reasonable best 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder[RESERVED.]
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aureus Greenway Holdings Inc), Registration Rights Agreement (Aureus Greenway Holdings Inc)
Shelf 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 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 60% 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a notify the Holders by facsimile or e-mail as promptly as practicable, and in any event, within one (1) Trading Day, after any Registration Statement as of 5:00 is declared effective. The Company shall, by 5:30 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) second Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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, 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, or (v) after the effective date of a Registration StatementStatement but prior to the end of the Effectiveness Period, 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 twenty-five thirty (2530) consecutive calendar days or more than an aggregate of fifty sixty (5060) calendar days (which need not be consecutive calendar days) during any 12-month twelve (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 twenty-five fifteen (2515) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five thirty (2530) or fifty sixty (5060) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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 of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement for the Registrable Securities then held by such Holder; provided, however, that the Company shall not be required to make any payments pursuant to this Section 2(d) with respect to any Registrable Securities the Company is unable to register due to limits imposed by the Commission’s interpretation of Rule 415 under the Securities Act as contemplated by Section 2(b). The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 10.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement for the Registrable Securities then held by such Holder, and that in no event shall the Company be required to pay to a Holder under this Agreement liquidated damages in any thirty (30) day period in excess of 1.0% of the aggregate Subscription Amount paid by such Holder. If the Company fails to pay any partial liquidated damages pursuant to this Section 2(d) in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 121.0% per annum month (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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter an underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Trevi Therapeutics, Inc.), Registration Rights Agreement (Trevi Therapeutics, Inc.)
Shelf Registration. (a) On As promptly as possible, and in any event on or prior to each the Filing Date, the Company shall prepare and file with the Commission a “shelf” Registration Statement covering the resale of 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 The Registration Statement filed hereunder shall be on Form S-3, unless Form S-3 (except if the Company is not then eligible to register available for the registration of the resale the of Registrable Securities on Form S-3hereunder, in which case such registration the Company shall be (i) register the resale of the Registrable Securities on another appropriate form in accordance herewithherewith and (ii) attempt to register the Registrable Securities on Form S-3 as soon as such form is available, subject provided that the Company shall maintain the effectiveness of the Registration Statements then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission. If at any time the staff of the Commission takes the position that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 60% in interest of Rule 415 under 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 Securities Act or requires any Investor to be named as an “underwriter” without (an “SEC Objection”), the Company shall promptly notify the Investor of such Holder’s express prior written consent. Subject to SEC Objection and if the terms of this AgreementInvestor shall request, the Company shall use its commercial commercially reasonable efforts to persuade the staff of the Commission that the offering contemplated by the Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that the Investor is not an “underwriter” (a “Rule 415 Response Effort”). The Investor shall have the right to participate or have its counsel participate in any meetings or discussions with the staff of the Commission regarding such position and to comment or have its counsel comment on any written submission made to the staff of the Commission with respect thereto, and to have such comments relayed to the staff of the Commission with the consent of the Company, not to be unreasonably withheld. No such written submission shall be made to the staff of the Commission to which the Investor’s counsel reasonably objects. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 4.1(a), the staff of the Commission has not altered its position and the Investor provides notice to the Company to cease any further Rule 415 Response Efforts (the “Investor Rule 415 Determination”), the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the staff of the Commission may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that the Company shall not agree to name any Investor as an “underwriter” in such Registration Statement without the prior written consent of such Investor (collectively, the “SEC Restrictions”). Notwithstanding any other provision of this Agreement to the contrary, no liquidated damages shall accrue pursuant to Section 4.1(d) (i) during the period beginning on the date of an SEC Objection and ending on the date that either the Company receives written notification from the Commission that the Company’s Rule 415 Response Effort has been successful or the Investor provides the Company with an Investor Rule 415 Determination or (ii) on or as to any Cut Back Shares until such time as the Company is able, using commercially reasonable efforts, to effect the filing of an additional Registration Statement with respect to the Cut Back Shares in accordance with any SEC Restrictions (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date, all of the provisions of this Article 4 (including the liquidated damages provisions) shall again be applicable to the Cut Back Shares; provided, however, that for such purposes, references to the Filing Date shall be deemed to be the date that is 30 days after the Restriction Termination Date.
(b) The Company shall use its best efforts to cause a each Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) hereunder to be declared effective under by the Securities Act Commission as promptly as possible after the filing thereof, but in any event no later than prior to the applicable Required Effectiveness Date, and shall use its commercial best efforts to keep such the Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of (i) the fifth anniversary of the Effective Date, (ii) the date that the when all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144sold publicly, or (iiiii) may be sold the date on which the Registrable Securities are eligible for sale without volume or manner-of-sale restrictions limitation pursuant to subparagraph (k) of Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a notify the Investor in writing promptly (and in any event within one Business Day) after receiving notification from the Commission that the Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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 612.09has been declared effective.
(c) Notwithstanding As promptly as possible, and in any other provision of this Agreement and subject to event no later than 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:
a. FirstPost-Effective Amendment Filing Deadline, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on prepare and file with the Commission a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Post-Effective Amendment. The Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 cause the Commission, Post-Effective Amendment to be declared effective by the Commission as promptly as allowed by possible after the filing thereof. The Company shall notify the investor in writing promptly (and in any event within one Business Day) after receiving notification from the Commission or SEC Guidance provided to that 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 amendedPost-Effective Amendment has been declared effective.
(d) If: (i) the Initial any Registration Statement is not filed on or prior to its the Filing Date (if or the Company files Restriction Termination Date, as applicable) or a Post-Effective Amendment is not filed on or prior to the Initial Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i))Post-Effective Amendment Filing Deadline, or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement effectiveness in accordance with Rule 461 promulgated by the Commission pursuant to under the Securities Act, within five (5) Trading Business Days of after the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission that such a 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 any comments made by the Commission in respect of such Registration Statement within twenty-five (25) calendar days 15 Business Days after the receipt of comments such comments, or (iv) a Registration Statement filed hereunder is not declared effective by or notice from the Commission by the Required Effectiveness Date (which date shall be extended by 30 days in the case of a comment regarding Rule 415), or a Post-Effective Amendment is not declared effective on or prior to the fifteenth Business Day following the Post-Effective Amendment Filing Deadline, or (v) after a Registration Statement is filed with and declared effective by the Commission, such Registration Statement ceases to be effective as to all Registrable Securities to which it is required to relate at any time prior to the expiration of the Effectiveness Period for a period of more than 60 days in any twelve month period without being succeeded by an amendment to such Registration Statement or by a subsequent Registration Statement filed with and declared effective by the Commission, or (vi) an amendment to a Registration Statement is not filed by the Company with the Commission within 15 Business Days after the Commission’s having notified the Company that such amendment is required in order for 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) calendar day period, as applicable, is exceeded occurs 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 the Investor an amount in cash, as liquidated damages and not as a penalty, equal to 1% of the aggregate Purchase Price paid by the Investor pursuant to this Agreement for Registrable Securities that are not covered under an effective Registration Statement (the “Liquidated Damages Base”); and (y) on each monthly anniversary the same day of each successive month following such Event Date (if so long as the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder the Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the product of 1.0% multiplied by Liquidated Damages Base. Such payments shall be the aggregate Subscription Amount paid by Investor’s sole and exclusive remedy for such Holder pursuant to the Purchase AgreementEvents. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days Business Days after the date payable, the Company will pay interest thereon at a rate of 1218% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the HolderInvestor, 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) The Company shall not, prior to the Effective Date of the Registration Statement, prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities.
(f) If Form S-3 the Company issues to the Investor any Common Stock pursuant to the Transaction Documents that is not available for included in the registration of the resale of Registrable Securities hereunderinitial Registration Statement, then 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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the file an additional Registration Statement then covering such number of shares of Common Stock on or prior to the Filing Date and shall use it best efforts, but in effect until no event later than the Required Effectiveness Date, to cause such time as a additional Registration Statement on Form S-3 covering the Registrable Securities has been to be declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Axion Power International, Inc.), Securities Purchase Agreement (Axion Power International, Inc.)
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 (assuming all Warrants are excised by cashless exercise as provided for in the Warrants) and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 12.0% of the aggregate Subscription Amount paid by the Holders 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Smith Micro Software, Inc), Registration Rights Agreement (Smith Micro Software Inc)
Shelf 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 or such maximum portion of the Registrable Securities as permitted by SEC Guidance (provided that, the Company shall 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, the Manual of Publicly Available Telephone Interpretations D.29) 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 60an 85% majority 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) hereunder to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than prior to the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of (i) eighteen (18) months from the date that hereof or (2) the date all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) (A) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and (B) (I) may be sold without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 or (II) the Company is in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) time on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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 (b1) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all Trading Day of the Registrable Securities cannot, as a result such notification 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 effectiveness or failure to file amendments to the Initial Registration Statement a final Prospectus 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(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 foresaid 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) deemed an Event under Section 2(b). Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d2(b), 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 first be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce by Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); provided, however, that, prior to any reduction in the holders number of the Series Underlying Shares and the holders Registrable Securities included in a Registration Statement as set forth in this sentence, all shares of the Debenture Shares, as applicable)Common Stock set forth on Schedule 6(b) hereto shall be reduced first. 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 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.
(db) 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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 declared effective, or (iv) as to, in the aggregate among all Holders on a pro-rata basis based on their purchase of the Securities pursuant to the Purchase Agreement, a Registration Statement registering for resale all of the Registrable Securities Initial Shares is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any 12-month period period, or (vi) the Company shall fail for any reason to satisfy the current public information requirement under Rule 144 as to the applicable Registrable Securities (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i) ), (iv), and (ivvi), 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1% of 1.0% multiplied by the aggregate Subscription Amount purchase price paid by such Holder pursuant to the Purchase AgreementAgreement for any unregistered Registrable Securities then held by such Holder. The parties agree that the Company shall not be liable for liquidated damages under this Agreement with respect to any unexercised Warrants or Warrant Shares. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (NMT Medical Inc), Registration Rights Agreement (NMT Medical Inc)
Shelf Registration. (a) On or prior to each Filing DateIf the Preferred Stock shall have previously been converted into Registrable Securities, then the Company shall, within ten (10) days of the receipt thereof, give written notice of such request to all Holders and, subject to the limitations of Section 2(b) below, shall prepare and file (as expeditiously as practicable, and in any event within thirty (30) days of the receipt of any other such request) with the Commission a “Shelf” Registration Statement covering the resale of 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 Such 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 herewith as the provisions of Section 2(e)Designated Holders may consent) and shall contain (unless except if otherwise directed by at least 60% in interest of the Designated 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the A. The Company shall use its commercial best commercially reasonable efforts to cause a such 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 and in any event no later than within sixty (60) days of the Purchaser Request (or one hundred twenty (120) days in the event the SEC has determined to review the applicable Effectiveness DateRegistration Statement) and shall, and shall subject to notice from the Company under Section 9(f), use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder for the period that such Registration Statement may be kept effective under applicable SEC regulations until the earlier of (i) the date that the on which all Registrable Securities are eligible for sale under paragraph (k) of the Holder Rule 144 without any volume, manner of sale or other restrictions and (ii) when all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of notify each Holder in writing promptly (and in any event within one Trading Day) after receiving notification from the Commission that a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Dayhas been declared effective. The Notwithstanding the foregoing, the Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of not be obligated to file a Registration Statement no later than one pursuant to this Section 2 (1i) Trading Day that during 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) no later than one (1) Trading Day after 90 day period commencing on the effective date of such Registration Statementany other registration statement filed by the Company relating to the public offering of its Common Stock or securities convertible into Common Stock (other than on Forms S-4 or S-8 or any successor thereto) or (ii) if the Company shall furnish to the Holders a certificate signed by the chief executive officer of the Company stating that, in the good faith judgment of the Board of Directors of the Company, the Board has determined to file a final Prospectus with registration statement relating to the Commission as required public offering of its Common Stock or securities convertible into Common Stock (other than on Forms S-4 or S-8 or any successor thereto) within 30 days of the Purchaser Request, during the period commencing on the date of such notice and ending upon the earliest of (i) effectiveness of such registration statement , (ii) a decision by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all not to pursue effectiveness of such registration statement or (iii) 90 days after the Registrable Securities cannot, as a result filing of the application of Rule 415, be registered for resale as a secondary offering on a single such 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 Company may not utilize this right more than once in any twelve (512) Trading Day period is exceededmonth period; provided, further, that, for the avoidance of doubt, this clause (ii) shall be incremental to, and for purpose of not in lieu of, the Company’s relief from its shelf registration obligation under clause (iiii) above. Notwithstanding the date which such twenty-five (25) calendar day period is exceededforegoing, and for purpose if the Company shall furnish to the Holders a certificate signed by the chief executive officer of clause (v) the date on which such twenty-five (25) or fifty (50) calendar day period, as applicable, is exceeded being referred to as “Event Date”), thenCompany stating that, in addition the good faith judgment of the Board of Directors of the Company, maintaining a Registration Statement’s effectiveness would be materially detrimental to any other rights the Holders may have hereunder Company and its stockholders for such Registration Statement to remain effective by reason of a material pending or under applicable law, on each imminently prospective transaction or development and it is therefore essential to suspend 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 curedRegistration Statement’s effectiveness, the Company shall pay have the right to each Holder an amount suspend such effectiveness for a period of not more than sixty (60) days 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% receipt of the Subscription Amount of such Holder.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunderPurchaser Request; provided, 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 reasonably practicable after such form is availablehowever, provided that the Company shall maintain the effectiveness of the Registration Statement then may not utilize this right more than twice in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commissionany twelve (12) month period.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ares Management Inc), Registration Rights Agreement (Wca Waste Corp)
Shelf 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 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 F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Depositary and the affected Holders, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent Depositary and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one on or before the second (12nd) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares Warrants (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares Warrants may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 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 F-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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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”; provided, however, that, the Purchaser’s inability to utilize the Prospectus contained in the Registration between April 1st of each year and for purposes of clauses (i) and (iv), the date on which such the Company files it annual report on form 20-F, which shall be no later than April 30th of the same year, solely due to staleness under Regulation S-X of the Company’s financial statements contained or incorporated by reference therein shall not be deemed an Event occurshereunder, 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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 earlier of (i) the date that the applicable Event is curedcured or (ii) the date that Registrable Securities may be sold without 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, 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 1.02.0% 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 (7) days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after 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 F-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (BIT Mining LTD), Registration Rights Agreement (BIT Mining LTD)
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a one or more Registration Statement Statements covering the resale of 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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial commercially reasonable 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 commercial commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144144 or otherwise, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one on the second (12nd) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as and if required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). In the event of a cutback hereunder, the Company shall give the Holder at least five two (52) 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 commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 (7) days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary herein, in this Agreement or no event shall the Purchase Agreement, the maximum aggregate amount of liquidated damages that a (excluding interest) payable to the Holder may receive shall not exceed 6pursuant to this Section exceed, in the aggregate, 10.0% of the Subscription Amount of such Holderaggregate purchase price paid by the Purchasers for the Securities issued at Closing.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (DiaMedica Therapeutics Inc.), Registration Rights Agreement (DiaMedica Therapeutics Inc.)
Shelf 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 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 Form S-1 or another appropriate form in accordance herewith, subject to the provisions of Section 2(e2(d)) and shall contain (unless otherwise directed by at least 60% a majority 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold by a non-Affiliate of the Company without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(e); 2(d) 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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) three Trading Days 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 Form S-1 or another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(fe) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter “underwriter” without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Presto Automation Inc.), Securities Purchase Agreement (Presto Automation Inc.)
Shelf 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 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 6085% 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 Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of (i) the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without 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 in each case, including pursuant to a written opinion letter to such effect, addressed cashless exercise of the Pre-Funded Warrants and acceptable to (ii) the Transfer Agent and two year anniversary of the affected Holders Applicable Closing Date (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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. 5:30 p.m. (New York City time) no later than one (1) 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 (b1) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all Trading Day of the Registrable Securities cannot, as a result such notification 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 effectiveness or failure to file amendments to the Initial Registration Statement a final Prospectus 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(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 foresaid 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 deemed an Event under 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Talphera, Inc.), Registration Rights Agreement (Talphera, Inc.)
Shelf Registration. (a) On or prior to each the applicable Filing Date, the Company shall prepare and submit or file with the Commission a Registration Statement covering the resale of all the maximum number of the Registrable Securities that are not then registered on an effective Registration Statement for an offering Statement, provided, however, that the number of Registrable Securities that are ultimately registered shall be as permitted to be made on a continuous basis pursuant included therein by the Commission (determined as of two Trading Days prior to Rule 415such submission or filing). 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 60% 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 Holder’s express prior written consent). Subject to the terms of this Agreement, the The Company shall use its commercial best commercially reasonable 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 by the applicable Effectiveness Date, and shall use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders Holder (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as in the time period required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 Holder 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(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 be obligated to use diligent commercially 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.
(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 commercially 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 Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable)Registrable Securities. In the event of a cutback hereunder, the Company shall give the Holder at least five three (53) 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 commercially reasonable 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 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.
(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 Holder the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fourteen (2514) calendar 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 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, 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 Holder is otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five fourteen (2514) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded being referred to as “Event Date”), then, in addition to any other rights the Holders Holder may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the 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 1.01% multiplied by the aggregate Subscription Submitted Receivable Amount (as defined in the Purchase Agreement) paid by Holder pursuant to the Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to Holder under this Agreement shall be 50% of the aggregate Submitted Receivable 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 128% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zoomcar Holdings, Inc.), Securities Purchase Agreement (Zoomcar Holdings, Inc.)
Shelf 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 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, such as Form S-1, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 6051% 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; A, provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable best efforts to cause a Registration Statement filed under this Agreement 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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 two (2) Trading Days of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding the registration obligations set forth in Section 2(a), and subject to the payment of liquidated damages pursuant to Section 2(d), 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(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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Common Shares and Conversion Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Common Shares and the Debenture Conversion Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, or (v) after the effective date Effective Date and prior to the termination of a Registration Statementthe Effectiveness Period, 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 twenty-five ten (2510) consecutive calendar days Trading Days or more than an aggregate of fifty twenty (5020) calendar days Trading Days (which need not be consecutive calendar daysTrading 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) ), the date on which such twenty-five ten (2510) or fifty twenty (5020) calendar day 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, 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 AgreementSubscription Agreement up to a maximum of 12%. 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 form, and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Mabvax Therapeutics Holdings, Inc.), Registration Rights Agreement (Majesco Entertainment Co)
Shelf Registration. (a) On or prior to each the Filing Date, the Company shall prepare and file with the Commission a "Shelf" Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement relating to such Filing Date (and excluding, for purposes of this number, any securities which may be issuable upon any stock split, dividend or other distribution or recapitalization provision in the Warrants or in connection with any anti-dilution provisions in the Warrants) for an offering to be made on a continuous basis pursuant to Rule 415. Each The Registration Statement filed hereunder shall be on Form S-3 (except if unless 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 60% in interest of the HoldersHolders and except to the extent the Company determines that modifications thereto are required under applicable law) 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a the 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 prior to the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder 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 of the Holder covered by such Registration Statement (i) have been sold, thereunder sold or pursuant to Rule 144, or (ii) may be sold without 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, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent Company's transfer agent and the affected Holders (the “"Effectiveness Period”"). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(d) If: (i) the Initial a Registration Statement is not filed on or prior to its the Filing Date (if the Company files the Initial a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein), the Company shall not be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to under the 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 a Registration Statement will not be “"reviewed” ," or will not be subject to further review, or (iii) prior to the effective date of a Registration Statementits Effectiveness Date, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within twenty-five (25) calendar days 15 Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for such a Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities filed or required to be filed hereunder is not declared effective by the Commission by the its Effectiveness Date of the Initial Registration StatementDate, or (v) after the effective date of Effectiveness Date, a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statementfor which it is required to be effective, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, Securities for more than twenty-five (25) 5 consecutive calendar days Trading Days or more than in any individual case an aggregate of fifty (50) calendar days 15 Trading Days during any 12 month period (which need not be consecutive calendar daysTrading Days) during any 12-month period (any such failure or breach being referred to as an “"Event”", and for purposes of clauses clause (i) and or (iv), ) the date on which such Event occurs, and or for purpose purposes of clause (ii) the date on which such five (5) Trading Day period is exceeded, and or for purpose purposes of clause (iii) the date which such twenty-five (25) calendar day 15 Trading Day period is exceeded, and or for purpose purposes of clause (v) the date on which such twenty-five (25) 5 or fifty (50) calendar day 15 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, on each such Event Date and on each every monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) thereof until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% per month of (i) the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement for Registrable Securities then held by such Holder and covered (or to be covered) by such Registration Statement, and (ii) if the Warrants are "in the money" and then held by the Holder, the value of any outstanding Warrants (valued at the difference between the average VWAP during the applicable month and the Exercise Price multiplied by the number of shares of Common Stock the Warrants are exercisable into). 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 1215% 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 pro-rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Matritech Inc/De/), Registration Rights Agreement (Matritech Inc/De/)
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a the Initial Registration Statement covering the resale of all of the Registrable Securities underlying the Preferred Stock and/or Warrants 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(e2(d)) and shall contain (unless otherwise directed by at least 6085% in interest of the HoldersHolders or otherwise modified by the Company to comply with applicable law, rule or regulation or to make any disclosure contained therein not misleading) 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request from the Commission for the effectiveness of a Registration Statement to be as of 5:00 p.m. (New York City time) on a Trading Day, provided that the actual effectiveness shall be subject to the Commission’s approval of such effectiveness. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities on the Initial Registration Statement cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single such registration statement, then the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments an amendment 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(e2(d); 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 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, Securities Act Rules Compliance and Disclosure Interpretation Question 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)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 used diligent efforts to advocate with the Commission for the registration of all or a greater portion of the 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. i. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. ii. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
iii. Third, the holders Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Conversion Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days 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, then the Company will shall use its best commercially reasonable efforts to file with the Commission, as promptly thereafter 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, 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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Adamis Pharmaceuticals Corp), Registration Rights Agreement (Adamis Pharmaceuticals Corp)
Shelf 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 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 herewithherewith (including Form S-1), subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by Investor and at least 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 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 for resale 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(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 be obligated to use diligent reasonable best 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:
a. (i) First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. (ii) Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
(iii) Third, the holders Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Conversion Shares and the holders of the Debenture Shares, as applicableheld 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 reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 1210% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Ensysce Biosciences, Inc.), Registration Rights Agreement (Ensysce Biosciences, Inc.)
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request in writing effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, Warrant Shares underlying the Series H Underlying Shares and the Debenture Shares Ordinary Warrants (applied, in the case that some Underlying Shares, Warrant Shares underlying the Series H Underlying Shares and the Debenture Shares Ordinary Warrants may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H Warrant Shares underlying Shares and the Debenture Shares Ordinary Warrants held by such Holders); and
c. Third, the holders of the Series Underlying Company shall reduce Registrable Securities represented by Shares and the holders Pre-Funded Warrants (applied, in the case that some Shares and the Pre-Funded Warrants may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares and the Debenture Shares, as applicablePre-Funded Warrants 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, 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 twenty-five fifteen (2515) consecutive calendar days or more than an aggregate of fifty twenty (5020) 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 twenty-five fifteen (2515) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five fifteen (2515) or fifty twenty (5020) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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 1.02.0% 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 15.0% of the aggregate Subscription Amount paied by such Holder pursuant to the Purchase Agreement for the Registrable Securities then held by such Holder. 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (CYREN Ltd.), Registration Rights Agreement (CYREN Ltd.)
Shelf 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 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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex B▇▇▇▇▇ ▇; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and reasonably acceptable to the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City Boston time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for of effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City Boston time) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Conversion Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Conversion Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Conversion Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 reasonable best 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 declared effective; provided, however, that to the extent that the filing of an amendment to the Registration Statement under clause (iii) would require updated audited financial statements to be filed by amendment to the Registration Statement pursuant to the Securities Act in advance of the applicable filing deadline for such audited financial statements under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the applicable Event Date with respect thereto shall be five (5) Trading Days after the applicable Exchange Act deadline, or (iv) a Registration Statement registering for resale all of the Registrable Securities Securities, subject to the cutback limitations set forth in Section 2(c) of this Agreement, is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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; provided, however, that the Company shall not be required to make any payments pursuant to this Section 2(d) with respect to (A) any Registrable Securities the Company is unable to register due to limits imposed by the Commission’s interpretation of Rule 415 under the Securities Act as contemplated by Section 2(b), or (B) a Registration Statement not being declared effective by the Commission by a specified date due to the Commission policy not to grant requests for acceleration of the effective date of a pending registration statement during a shutdown of the United States government. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 6.0% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Creative Realities, Inc.), Securities Purchase Agreement (Creative Realities, Inc.)
Shelf Registration. (a) On Subject to SEC Guidance and Sections 2(c) and 6(m), on or prior to each Filing Date, the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of 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. The Registration Statement shall be filed with the SEC by the Filing Date. Any time requirements required by this Agreement shall be extended to the next business day if the time falls on a weekend or federal holiday. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible S-1 or such other form available 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)) as a secondary offering and shall contain (unless otherwise directed by at least 6050.1% 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 unless required by SEC Guidance, no Holder shall be required to be named as an “underwriter” without such HolderH▇▇▇▇▇’s express prior written consentconsent in which event the Company shall be under no obligations to such Holder under this Agreement. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 thereof and by the applicable Effectiveness Date, and shall use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without 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, and the conditions of Rule 144(i)(2) have been met, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) by the next Trading Day that the Company telephonically confirms effectiveness with the CommissionSEC, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) Eastern Time on the Trading Day five days after the effective date of such Registration Statement, file a final Prospectus with the Commission SEC as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission SEC staff informs the Company that all of the Registrable Securities cannot, as a result of the application of any SEC Guidance including 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 CommissionSEC, covering the maximum number of Registrable Securities permitted to be registered by the CommissionSEC, on Form S-3 S-1 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission SEC 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)Agreement, if the Commission SEC 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 SEC 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 and other securities to be registered on such Registration Statement will be reduced or eliminated as necessary to comply with such SEC Guidance or other communications or requirements, as follows:
a. (1) First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Warrant Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. (2) Second, the Company shall reduce Registrable Securities represented by Underlying or eliminate the Conversion Shares; and
(3) Third, the Series H Underlying Shares and Company shall reduce or eliminate the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable)Prior Securities. 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 HolderH▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its best commercially reasonable efforts to file with the CommissionSEC, 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 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, as amended.
(d) If: (i) Notwithstanding anything in this Agreement to 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) hereincontrary, the Company Company’s obligations shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 cease 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 twenty-five (25) calendar day period is exceeded, and for purpose two years after the final sale of clause (v) the date on which such twenty-five (25) or fifty (50) 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 units sold 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Splash Beverage Group, Inc.), Registration Rights Agreement (Eastside Distilling, Inc.)
Shelf Registration. (a) On or prior If at the time the Company registers Registrable Securities under the Securities Act pursuant to each Filing Datethis Section 2, the Company shall prepare and file with the Commission a Registration Statement covering the resale sale or other disposition of all of the such Registrable Securities that are not then registered on an effective Registration Statement for an offering to by the Holders may be made on a delayed or continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be a registration statement on Form S-3 (except if or any successor form that permits the incorporation by reference of future filings by 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)Exchange Act), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 is not available for use by the Company, Form S-1 (or any successor form that permits the incorporation by reference of future filings by the Company under the Exchange Act), then such registration statement, unless otherwise directed by the Requestor, shall be filed as a “shelf” registration statement pursuant to Rule 415 under the Securities Act (or any successor rule). Any such shelf registration shall cover the disposition of the resale of all Registrable Securities hereunderin one or more underwritten offerings, block transactions, broker transactions, at-market transactions and in such other manner or manners as may be specified by the Requestor. Except as provided in Section 5(b) hereof, the Company shall (i) register use all commercially reasonable efforts to keep such “shelf” registration continuously effective as long as the resale delivery of a prospectus is required under the Securities Act in connection with the disposition of the Registrable Securities on another appropriate registered thereby and in furtherance of such obligation, shall supplement or amend such registration statement if, as and when required by the rules, regulations and instructions applicable to the form used by the Company for such registration or by the Securities Act or by any other rules and (iiregulations thereunder applicable to shelf registrations. Upon their receipt of a certificate signed by the chief executive officer of the Company stating that, in the judgment of the Company, it is advisable to suspend use of a prospectus included in a registration statement due to pending material developments or other events that have not yet been publicly disclosed and as to which the Company believes public disclosure would be detrimental to the Company, in accordance with the procedure set forth in the last paragraph of Section 2(a) undertake to register hereof, the Holders will refrain from making any sales of Registrable Securities on Form S-3 as soon as reasonably practicable after such form is availableunder the shelf registration statement for a period of up to 45 calendar days; provided, provided that this right to cause the Holders to refrain from making sales shall not be exercised by the Company shall maintain more than twice in any twelve-month period (counting as a permitted exercise any exercise by the Company of its right to defer the filing or delay its effectiveness of a registration statement under the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commissionlast paragraph of Section 2(a)).
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Photomedex Inc), Registration Rights Agreement (Perseus Partners Vii L P)
Shelf Registration. (a) On or prior The Company shall:
(i) as expeditiously as practicable, but no later than 45 days from the Initial Closing Date, cause to each Filing be filed a Shelf Registration Statement on Form S-3, as applicable, pursuant to Rule 415 under the Securities Act, which Shelf Registration Statement shall provide for resales of all Restricted Securities the Holders of which shall have provided to the Company the information required pursuant to Section 2.2(c) herein; and
(ii) cause such Shelf Registration Statement to be declared effective by the Commission as expeditiously as practicable, but not later than 120 days from the Initial Closing Date.
(b) In connection with the Shelf Registration Statement, the Company shall prepare and file comply with the Commission a Registration Statement covering the resale of 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)) 2.4 below and shall contain (unless otherwise directed by at least 60% in interest use its best efforts to effect such registration to permit the sale of the Holders) substantially Restricted Securities being sold in accordance with the “Plan intended method or methods of Distribution” attached hereto distribution thereof (as Annex A and substantially indicated in the “Selling Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required information furnished to be named as an “underwriter” without such Holder’s express prior written consentthe Company pursuant to Section 2.2(c)). Subject to the terms of this AgreementSection 2.2(d), the Company shall use its commercial 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 commercial best efforts to keep such Shelf Registration Statement continuously effective effective, supplemented and amended as required by the provisions of Section 2.2(d) to the extent necessary to ensure that it is available for resales of Restricted Securities by the Holders of Restricted Securities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, until the earlier of (i) the date as of which the Holders may sell all of the Restricted Securities without restriction pursuant to Rule 144(k) promulgated under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (ior successor thereto) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 (iiiA) the date which such twenty-five Holders shall have sold all the Securities and (25B) calendar day none of the shares of Preferred Stock or Warrants is outstanding (the "Registration Period"). Upon the occurrence of any event that would cause any Shelf Registration Statement or the Prospectus contained therein (i) to contain a material misstatement or omission or (ii) not to be effective and usable for the sale or resale of Restricted Securities during the period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 required by such date) until the applicable Event is curedthis Agreement, the Company shall pay file promptly an appropriate amendment to each such Shelf Registration Statement or the related Prospectus or any document incorporated therein by 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 best efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for its intended purpose(s) as soon as practicable thereafter.
(c) No Holder an amount of Restricted Securities may include any of its Restricted Securities in cash, as partial liquidated damages the Shelf Registration Statement pursuant to this Agreement unless and not as a penalty, equal until such Holder furnishes to the product Company in writing, within 10 Business Days after receipt of 1.0% multiplied by a written request therefor, such information specified in Item 507 of Regulation S-K under the aggregate Subscription Amount paid Securities Act (or any similar provision then in force) or such other information as the Company may reasonably request for use in connection with the Shelf Registration Statement or Prospectus or 4 preliminary Prospectus included therein. Each Holder as to which the Shelf 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 pursuant to the Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum not materially misleading.
(or such lesser maximum amount that is permitted to be paid by applicable lawd) 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. Notwithstanding anything to the contrary in this Agreement or Section 2.2, at any time after the Purchase AgreementRegistration Statement has been declared effective, the maximum amount Company may delay the disclosure of liquidated damages material non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a "Blackout Period"); provided, that the Company shall promptly (i) notify the Holders in writing of the existence of material non-public information giving rise to a Holder may receive Blackout Period and the date on which the Blackout Period will begin, and (ii) notify the Holders in writing of the date on which the Blackout Period ends; and, provided further, that (x) a Blackout Period shall not exceed 6% 30 days, (y) during any consecutive 365 day period, the aggregate number days during all Blackout Periods during such time shall not exceed 60 days and (z) no Blackout Period shall begin less than 60 days after the end of a prior Blackout Period (an "Allowable Blackout Period"). For purposes of determining the length of a Blackout Period above, the Blackout Period shall begin on and include the date the Holders receive the notice referred to in clause (i) and shall end on and include the date the Holders receive the notice referred to in clause (ii). Upon expiration of the Subscription Amount Blackout Period, the Company shall again be bound by the first sentence of such Holderthis Section 2.2(e) with respect to the information giving rise thereto. In the event of any Blackout Period, the Mandatory Conversion Date (as defined in the Certificate of Designations) shall be delayed one day for each day in the Blackout Period as provided in Section 5(c)(ii) of the Certificate of Designations.
(e) If The initial Registration Statement prepared pursuant hereto shall register for resale at least that number of shares of Common Stock equal to the product of (x) 1.5 and (y) the number of Securities as of the date immediately preceding the date the Registration Statement is initially filed with the Commission. In the event the number of shares available under a Registration Statement filed pursuant to this Agreement is insufficient to cover all of the Securities or a Holder's allocated portion of the Securities pursuant to Section 2.2(f), the Company shall amend the Registration Statement, or file a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover at least 150% of such Securities (based on the market price of the Common Stock), in each case, as soon as practicable, but in any event within fifteen (15) days after the necessity therefor arises. The Company shall use it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. For purposes of the foregoing provision, the number of shares available under a Registration Statement shall be deemed "insufficient to cover all of the Securities" if at any time the number of Securities issued or issuable upon conversion of the Preferred Stock and exercise of the Warrants is greater than the quotient determined by dividing (i) the number of shares of Common Stock available for resale under such Registration Statement by (ii) 1.5. For purposes of the calculation set forth in the 5 foregoing sentence, any restrictions on the convertibility of the Preferred Stock or exerciseability of the Warrants shall be disregarded and such calculation shall assume that the Preferred Stock and the Warrants are then convertible and exercisable, respectively, into shares of Common Stock at the then prevailing Conversion Rate (as defined in the Company's Certificate of Designations) and Warrant Exercise Price (as defined in the Warrant), respectively, if applicable.
(f) The initial number of Securities included in any Registration Statement and each increase in the number of Securities included therein shall be allocated pro rata among the Holders based on the number of Securities held by each Holder at the time the Registration Statement covering such initial number of Securities or increase thereof is declared effective by the Commission. In the event that a Holder sells or otherwise transfers any of such Person's Securities, each transferee shall be allocated a pro rata portion of the then remaining number of Securities included in such Registration Statement for such transferor. Any shares of Common Stock included in a Registration Statement and which remain allocated to any Person which ceases to hold any Securities shall be allocated to the remaining Holders, pro rata based on the number of Securities then held by such Holders.
(g) Subject to Section 2.6 hereof, the Purchasers holding a majority of the Securities shall have the right to select one legal counsel to review and oversee any offering pursuant to this Section 2.2 ("Legal Counsel"), which shall be designated by the holders of a majority of Securities. The Company shall reasonably cooperate with Legal Counsel in performing the Company's obligations under this Agreement.
(h) In the event that Form S-3 is not available for the any registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale sale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(fi) Notwithstanding anything The Company and the Purchasers each acknowledge that each Registration Statement prepared in accordance hereunder shall include an indeterminate number of Securities pursuant to Rule 416 under the Securities Act so as to cover any and all Securities which may become issuable (i) to prevent dilution resulting from stock splits, stock dividends or similar transactions and (ii) if permitted by law, by reason of certain antidilution provisions or reductions in the Conversion Price (as defined in the Certificate of Designations) of the Preferred Stock in accordance with the terms thereof, including, without limitation, the terms which cause the Floating Conversion Price (as defined in the Certificate of Designations) to decrease as the bid price of the Common Stock decreases (collectively, the "Rule 416 Securities"). In this regard, the Company agrees to use all reasonable efforts to ensure that the maximum number of Securities which may be registered pursuant to Rule 416 under the Securities Act are covered by each Registration Statement and, absent guidance from the Commission or other definitive authority to the contrary contained hereincontrary, in no event shall the Company be permitted shall use all reasonable efforts to name affirmatively support and to not ▇▇▇▇ ▇ any position adverse to the position that each Registration Statement filed hereunder covers all of the Rule 416 Securities. If the Company determines that the Registration Statement filed hereunder does not cover all of the Rule 416 Securities, the Company shall immediately (i) provide to each Holder written evidence setting forth the basis for the Company's position and the authority therefor and (ii) prepare and file an amendment to such Registration Statement or affiliate of a Holder as any Underwriter without the prior written consent of such Holdernew Registration Statement in accordance with Section 2.2(e).
Appears in 1 contract
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial commercially reasonable 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 commercial commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 commercially reasonable 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 S-3 (if Form S-3 is available to the Company) 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: (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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar days Trading 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be or, solely in connection with a “full review” by the Commission of a post-effective amendment to a Registration Statement in connection with the filing of the Company’s Annual Report on Form 10-K and only once during the term of this Agreement, more than forty five (45) 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 twenty-five ten (2510) calendar day Trading Day period is exceeded, and for purpose of clause (v) the date on which such twenty-fifteen (15) or forty five (25) or fifty (5045) 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 1.01.5% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 use commercially reasonable best efforts to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Pure Bioscience, Inc.)
Shelf Registration. (a) On or prior to each Filing Date, the The Company shall prepare and file cause to be filed with the Commission pursuant to Rule 415 under the Act a Registration Statement covering on the appropriate form relating to the resale of all Warrants, the issuance of the Common Stock upon exercise of the Warrants and, under certain circumstances if required by law, the resale of the Common Stock issuable upon exercise of the Warrants. The Company shall use its best efforts to cause the Registration Statement to be declared effective by the Commission on or before 180 days after the Closing Date. To the extent necessary to ensure that the Registration Statement is available for sales of 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 by 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 Holders thereof entitled to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 60% 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 Holder’s express prior written consent. Subject to the terms benefit of this AgreementSection 3(a), the Company shall use its commercial 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 commercial best efforts to keep such any Registration Statement required by this Section 3(a) continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been soldeffective, thereunder or pursuant to Rule 144supplemented, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 amended and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d4(a) hereof and in conformity with respect the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, until the earlier of (A) the Expiration Date and (B) the first date as of which all Warrants have been exercised by the Holders thereof; provided that such obligation shall expire before such date if the Company delivers to the payment Warrant Agent a written opinion of liquidated damages; provided, however, that prior counsel to filing such amendment, the Company (which opinion of counsel 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 satisfactory to the payment Company) that all Holders of liquidated damages pursuant to Section 2(d), if Warrants and Warrant Shares may resell the Commission or any SEC Guidance sets forth a limitation on Warrants and the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (Warrant Shares without registration under the Act 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 without restriction as to its Registrable Securitiesthe manner, the number timing or volume of Registrable Securities to be registered on any such Registration Statement will be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable)sale. 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 Notwithstanding the foregoing, the Company will use its best efforts shall not be required to file with the Commission, as promptly as allowed by Commission amend 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 supplement any Registration Statement, as amended.
(d) If: (i) the Initial any related prospectus or any document incorporated therein by reference, or otherwise keep any Registration Statement continuously effective for a period (a "Black Out Period") not to exceed, for so long as this Agreement is not filed on or prior to its Filing Date in effect, two 45 consecutive-day periods (if except for the Company files 45 consecutive-day period immediately before the Initial Registration Statement without affording Expiration Date) in any calendar year, in the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, event that the Company shall be deemed to have not satisfied this clause (i))) engaged in a material acquisition, disposition or reorganization, or other material business transaction, (ii) such transaction is required to be disclosed in the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 applicable Registration Statement, Prospectus or amendment or supplement thereto, or the failure by the Company fails to file a pre-effective disclose such transaction in the applicable Registration Statement, Prospectus or amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within twenty-five (25) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for supplement thereto, would cause such Registration Statement to be declared effectivecontain an untrue statement of material fact or omit to state a material fact necessary in order to make the statement therein not misleading, in light of the circumstances under which they were made, (iii) such information regarding the existence of such transaction has not then been publicly disclosed by or on behalf of the Company and (iv) the Company determines in its good faith judgment that the disclosure of such event at such time would have a Registration Statement registering for resale all material adverse effect on the business, operations or prospects of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, or (v) after the effective date of a Registration Statement, Company; provided that such Registration Statement ceases Black Out Period shall be extended 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) calendar day period, as applicable, is exceeded being referred not 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 exceed 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.aggregate
Appears in 1 contract
Sources: Warrant Registration Rights Agreement (Leap Wireless International Inc)
Shelf 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 of the Registrable Securities that are not then registered on an effective Registration Statement for an a resale 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, including Form S-1, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective by the Commission 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 for resale 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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) hereinherein or the Company subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause as of the Filing Date (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, Statement 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 (7) days after the date payable, the Company will pay interest thereon at a rate of 1210% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter “underwriter” without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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 6085% 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 Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Common Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Common Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Common Warrant Shares held by such Holders);
c. Third, the holders Company shall reduce Registrable Securities represented by Prefunded Warrant Shares (applied, in the case that some Prefunded Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Prefunded Warrant Shares held by such Holders); and
d. Fourth, the Series Underlying Company shall reduce Registrable Securities represented by Shares and (applied, in the holders case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Debenture Shares, as applicableunregistered Shares held by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five three (53) 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 commercially reasonable 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 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.
(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) hereinherein or the Company subsequent withdraws the filing of the Registration Statement, the Company shall 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 request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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 StatementStatement (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, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than twenty-five twenty (2520) consecutive calendar days or more than an aggregate of fifty twenty-five (5025) 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 twenty-five twenty (2520) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty (20) or twenty-five (25) or fifty (50) 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; provided, however, that the maximum aggregate amount of partial liquidated damages payable to a Holder under this Agreement shall not exceed 10.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter “underwriter” without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Artelo Biosciences, Inc.)
Shelf Registration. (a) On or prior to each Filing DateAt the Holder’s written request, the Company shall use commercially reasonable efforts to prepare and file with the Commission a up to four Registration Statement Statements covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement Shares for an offering to be made on a continuous basis pursuant to Rule 415. The Holder may make such requests to file a Registration Statement at any time when the Holder holds at least [***] purchased by the Holder under this Agreement that are not then registered on an effective Registration Statement on the date of such request; provided that, such minimum ownership requirement shall not apply whenever the Holder is an Affiliate of the Company; provided further that, [***]. Each Registration Statement shall cover the resale of the Shares that have been purchased by the Holder under this Agreement and are not then registered on an effective Registration Statement as of the trading day immediately preceding the applicable filing date of such requested Registration Statement. The Company shall use commercially reasonable efforts to cause such Registration Statements to become effective as soon as reasonably practicable following the filing thereof. 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 Shares 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 60% 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 the Holder shall not be required to be named as an “underwriter” without such Holder’s express prior written consent). Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial reasonable best efforts to maintain such Registration Statement and keep such Registration Statement continuously effective under effective, available for use and in compliance with the provisions of the Securities Act Act, including by preparation and filing with the SEC such amendments and supplements as to a Holder many be necessary, until the earlier of the date that the Registrable Securities of the Holder all Shares covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent transfer agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in herein, to the extent there is an active Registration under this Agreement or Section 4(a) covering the Purchase AgreementShares, and the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of wishes to request an underwritten offering from such Holder.
Registration Statement (e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunderan “Underwritten Offering”), the Company shall use commercially reasonable efforts to participate in a standard due diligence process (i) register the resale of the Registrable Securities on another appropriate form including making senior management and (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is availableauditors available and providing for a standard data room), provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as provide for standard legal opinions and negative assurances letters from outside counsel and arrange for a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commissionmarket standard comfort letter.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Option to Purchase Shares of Common Stock (Senti Biosciences, Inc.)
Shelf 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 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 F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of the expiration date of the Warrants or the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as and if required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five two (52) 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 commercially reasonable 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 S-3 F-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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, or (v) after the effective date of a Registration StatementStatement and during the Effectiveness Period, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary herein, in this Agreement or no event shall the Purchase Agreement, the maximum aggregate amount of liquidated damages that a (excluding interest) payable to the Holder may receive shall not exceed 6pursuant to this Section exceed, in the aggregate, 10.0% of the Subscription Amount of such Holderaggregate purchase price paid by the Purchasers for the Securities issued at Closing.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after 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 F-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Nymox Pharmaceutical Corp)
Shelf 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 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 Form S-1 or on another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 6085% in interest of the Holders) substantially the “Plan of Distribution” substantially in the form attached hereto as Annex A and substantially the “Selling Stockholder” section substantially in the form attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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 (b1) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all Trading Day of the Registrable Securities cannot, as a result such notification 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 effectiveness or failure to file amendments to the Initial Registration Statement a final Prospectus 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(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 foresaid 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 deemed an Event under 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Brooklyn ImmunoTherapeutics, Inc.)
Shelf 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 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 60% a majority 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial commercially reasonable 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 commercial commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, 144 or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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), unless the Holder has not provided the Company with a facsimile number or e-mail address.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 an amendment or 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(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 any 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Common Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Common Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Common Warrant Shares held by such Holders); and
c. Third, the holders of the Series Underlying Company shall reduce Registrable Securities represented by Shares and Pre-Funded Warrant Shares (applied, in the holders case that some Shares and Pre-Funded Warrant Shares may be registered, to the Holders on a pro rata basis based on the total number of the Debenture Shares, as applicableunregistered Shares and Pre-Funded 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 commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Energy Focus, Inc/De)
Shelf 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 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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex BA▇▇▇▇ ▇; provided, however, that no Holder shall be required to be named as an “underwriter” without such HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities andrepresented by Warrant ADSs (applied, if included in the case that some Warrant ADSs may be registered, to the Holders on a Registration Statement, pro rata basis based on the shares total number of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”unregistered Warrant ADSs held by such Holders);; and
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares ADSs (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares ADSs may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares ADSs held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). In the event of a cutback hereunder, the Company shall give the Holder at least five three (53) Trading Days prior written notice along with the calculations as to such HolderH▇▇▇▇▇’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its best commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, 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 twenty-five fifteen (25) consecutive 15)consecutive calendar days or more than an aggregate of fifty twenty (5020) 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 twenty-five fifteen (2515) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five fifteen (2515) or fifty twenty (5020) 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, 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 a government shutdown resulting in the SEC’s inability to review or declare effective the Registration Statement . If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything the above, the parties agree that the maximum aggregate liquidated damages together with interest thereon payable to the contrary in a Holder under this Agreement or shall be 5% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Quoin Pharmaceuticals, Ltd.)
Shelf 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 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 6050.1% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the a “Selling Stockholder” section attached hereto as Annex Bof the type that is customary for transactions of this kind; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, sold thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail each Holder of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after in compliance with the effective date requirements of such Registration Statementthe Securities Act, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 be obligated agrees to use diligent commercially 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. The Company shall not be liable for any damages under this Agreement in connection with any Registrable Securities not registered for resale on a particular Registration Statement pursuant to this Section 2(b).
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)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 used diligent commercially 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 reasonable best efforts to file promptly 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 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. The Company shall not be liable for any damages under this Agreement in connection with any Registrable Securities not registered for resale on a particular Registration Statement pursuant to Sections 2(b) or 2(c).
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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 StatementStatement (subject to any reductions to such Registrable Securities being registered pursuant to Sections 2(b) or 2(c), which reductions shall, for the avoidance of doubt, not cause any damages under this Section 2(d)), 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded 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 earlier of (1) applicable Event is curedcured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions, 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 1.02.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement for any unregistered Registrable Securities then held by such Holder. 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 1218% 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 parties agree that (1) notwithstanding anything to the contrary herein or in the Purchase Agreement, no liquidated damages shall be payable with respect to any period after the expiration of the Effectiveness Period so long as the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions. The effectiveness deadline for a Registration Statement shall be extended without default or liquidated damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration on a timely basis results from the failure of a Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which the effectiveness deadline would be extended with respect to the Registrable Securities held only by such Holder). 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (SELLAS Life Sciences Group, Inc.)
Shelf 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 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 eligible, or the resale of the Registrable Securities is not eligible, to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on Form S-1 or another appropriate form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, Warrant Shares underlying the Series H Underlying Shares A Warrants and the Debenture Shares Series B Warrants (applied, in the case that some Underlying Shares, Warrant Shares underlying the Series H Underlying Shares A Warrants and the Debenture Shares Series B Warrants may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Warrant Shares underlying the Series H underlying Shares A Warrants and the Debenture Shares Series B Warrants held by such Holders); and
c. Third, the holders of the Series Underlying Company shall reduce Registrable Securities represented by Shares and the holders Pre-Funded Warrants (applied, in the case that some Shares and the Pre-Funded Warrants may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares and the Debenture Shares, as applicablePre-Funded Warrants 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commissionform.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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 6051% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Conversion Shares and the holders of the Debenture Shares, as applicableheld 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 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. Notwithstanding anything herein to the contrary, liquidated damages shall not accrue on any Registrable Securities cutback as a result of SEC Guidance.
(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, the Company shall be deemed to have not satisfied this clause (i)Date), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) twenty consecutive calendar days or more than an aggregate of fifty (50) forty 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) twenty or fifty (50) forty 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 Stated Value of Preferred Stock then held by such Holder and not subject to an effective registration statement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 5% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Creek Road Miners, Inc.)
Shelf 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 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 6085% 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 Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of (i) the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without 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 in each case, including pursuant to a written opinion letter to such effect, addressed cashless exercise of the Warrants and acceptable to (ii) the Transfer Agent and two year anniversary of the affected Holders Closing Date (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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. 5:30 p.m. (New York City time) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Acelrx Pharmaceuticals Inc)
Shelf Registration. (a) On or prior Retix shall be entitled to each Filing Datedemand, at any time, that the Company shall prepare and file secure the effectiveness of a "shelf" registration statement under Rule 415 under the Securities Act with the Commission a Registration Statement covering SEC, for the resale sale by Retix of all of the Registrable Securities that are not then registered on an effective held thereby. Prior to demanding any such registration, Retix shall first consult with the Company for a period of at least 30 days otherwise, concerning the need for such registration in light of Retix's ability to sell freely all of the shares of Common Stock issuable upon conversion of the Securities in the United States public markets under Rule 144 or otherwise.
(b) Following such consultation, whether to demand such Registration Statement for an offering shall be at the sole discretion of Retix, and the Company shall take all action necessary to comply with such demand. The Company represents and warrants that on the date the Registration Statement becomes effective, the Registration Statement will comply in all material respects with the applicable requirements of the Securities Act and the rules thereunder; on the date of its effectiveness the Registration Statement (including any documents incorporated by 80 reference therein) will not contain 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 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 therein not then eligible to register for resale the Registrable Securities on Form S-3misleading, 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 60% 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 representation is made by the Company with respect to written information furnished to the Company by or on behalf of Retix specifically for inclusion in the Registration Statement; and the final prospectus contained in the Registration Statement, if not filed pursuant to Rule 424(b), will not, and on the date of any filing pursuant to Rule 424(b), such final prospectus (together with any supplement thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, provided, however, that no representation is made by the Company with respect to written information furnished to the Company by or on behalf of the Retix specifically for inclusion in such prospectus. The Company will promptly: (A) notify Retix when the Registration Statement is declared effective; and (B) notify Retix of any stop-order or similar proceeding by the SEC or any state securities authority.
(c) The Company hereby covenants and agrees that (A) no other holder of the Company's securities (including convertible securities) other than transferees of Retix is entitled to or shall be required hereafter given the right to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed participate in any registration under this Agreement Section 1.8 whether by the exercise of a demand or "piggyback" registration right and (including, without limitation, under Section 3(c)B) to no other registration statement covering any other holder's securities shall be declared effective under or maintained in effect during such time as the Registration Statement shall be effective.
(d) The Company shall promptly prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act as promptly as possible after with respect to the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities disposition of the Holder all securities covered by such Registration Statement (i) and keep the Registration Statement effective until all the Registrable Securities have been sold, thereunder sold pursuant thereto or pursuant until Retix is able to dispose of its entire remaining ownership interest in the Registrable Securities in the United States public markets in a single transaction under Rule 144 without invoking clause (e)(1)(ii) of Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of provide a transfer agent, registrar and CUSIP number with respect to all securities registered by such Registration Statement as of 5:00 p.m. Statement.
(New York City timee) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 furnish 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(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) Retix with respect to the payment Registrable Securities registered under the Registration Statement such number of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate copies of prospectuses and preliminary prospectuses and supplements in conformity with the Commission for requirements of the registration Securities Act and such other documents as Retix may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09Shares by Retix.
(cf) 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:
a. First, the The Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 register 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 declared effective, or (iv) a Registration Statement registering for resale all of qualify the Registrable Securities is not declared effective covered by the Commission by the Effectiveness Date of the Initial Registration Statement, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for Statements under such other securities or blue sky laws of such jurisdictions as Retix shall reasonably request and do any reason and all other acts or things which may be necessary or desirable to remain continuously effective as enable Retix to all Registrable Securities included consummate the public sale or other disposition in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is availablejurisdictions, provided that the Company shall maintain the effectiveness of the Registration Statement then not be required in effect until such time connection therewith or as a Registration Statement on Form S-3 covering condition thereto to qualify to do business or file a general consent to service of process in any such jurisdictions.
(g) In accordance with Section 1.10 below, the Company shall bear all expenses in connection with the procedures set forth in this Section 1.8 and the registration of the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything pursuant to the contrary contained hereinRegistration Statement, in no event shall the Company be permitted other than broker's commissions or discounts, transfer taxes, and fees and expenses, if any, of counsel or other advisors to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such HolderRetix.
Appears in 1 contract
Sources: Master Agreement (Sonoma Systems)
Shelf 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 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 60% in interest of the HoldersRequired Purchasers) 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 Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions no longer constitute Registrable Securities pursuant to Rule 144 and without clause (c) of the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders definition thereof (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding If at any time the registration obligations set forth in Section 2(a), if staff of the Commission informs (the Company “Staff”) takes the position that the offering of some or all of the Registrable Securities cannot, as in the Registration Statement is not eligible to be made on a result of delayed or continuous basis under the application provisions of Rule 415, 415 under the Securities Act or requires any Holder to be registered for resale named as a secondary offering on a single registration statementan “underwriter”, the Company agrees shall use its reasonable best efforts to promptly inform each persuade the Staff that the offering contemplated by a Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter”. The Holders shall have the right to participate or have their counsel participate in any meetings or discussions with the Staff regarding the Staff’s position and to comment or have their counsel comment on any written submission made to the Staff with respect thereto. No such written submission shall be made to the Staff to which counsel to a Holder reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2(b), the Staff refuses to alter its position, the Company shall (i) notify 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(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 damagesdamages and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that prior to filing such amendment, the Company shall be obligated not agree to use diligent efforts to advocate with name any Holder as an “underwriter” in such Registration Statement without the Commission for the registration prior written consent of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09such Holder.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission Staff 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares shares of Common Stock beneficially held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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 (and, with respect to disclosure on such Holder, to comment) on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, or (viv) 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 twenty-five thirty (2530) consecutive calendar days or more than an aggregate of fifty forty five (5045) 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 (iviii), 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (viv) the date on which such twenty-thirty (30) or forty five (25) or fifty (5045) 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 curedcured or, if earlier, 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 purchase price paid by such Holder pursuant to the Purchase Agreement, provided, however, that the Company shall not be required to make any payments with respect to Registrable Securities which may be freely tradable pursuant to Rule 144. The maximum aggregate liquidated damages payable to a Purchaser pursuant to this Agreement shall be 6.0% of the 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Aprea Therapeutics, Inc.)
Shelf 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 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(e2(f)) and shall contain (unless otherwise directed by at least 6085% 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 HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 reasonably possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as until the earliest to a Holder until occur of (i) the date that the all Registrable Securities of the Holder covered by such Registration Statement (ix) have been sold, thereunder or pursuant to Rule 144, or (iiy) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders or (ii) the 5-year anniversary of the date hereof (the “Effectiveness Period”). The Company shall telephonically request notify the Holders of the effectiveness of a the Registration Statement on the same Trading Day as such effectiveness occurs.
(b) Notwithstanding any other provision of 5:00 p.m. this Section 2, the Company shall have the right, but not the obligation, to defer the filing of (New York City timebut not the preparation of), or suspend the use by the Holders of, any Registration Statement for the shortest period reasonably possible, (i) on upon issuance by the Commission of a Trading Daystop order suspending the effectiveness of such Registration Statement with respect to Registrable Securities or the initiation of proceedings with respect to such Registration Statement under Section 9(d) or 8(e) of the Securities Act; or (ii) if the Company believes in good faith that any such registration or offering would require the Company (after consultation with external legal counsel), under applicable securities laws and other laws, to make disclosure of material nonpublic information that would not otherwise be required to be disclosed at that time that would be adverse to the Company (any such period, a “Suspension Period”); provided, that in no event shall the Company declare Suspension Periods lasting more than 120 days in the aggregate in any twelve (12) month period. The Company shall promptly notify (i) give prompt written notice to the Holders via facsimile or by e-mail of its declaration of a Suspension Period and of the effectiveness expiration or termination of a Registration Statement no later than one the relevant Suspension Period and (1ii) Trading Day that promptly resume the Company telephonically confirms effectiveness with process of filing or requesting for effectiveness, or update 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) no later than one (1) Trading Day after the effective date of such suspended Registration Statement, file a final Prospectus as the case may be, as may be necessary to permit the Holders to offer and sell their Registrable Securities in accordance with the Commission as required by Rule 424applicable law.
(bc) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any 12-month period (other than, in each case, during the time period(s) permitted by Section 3(j)) (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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 18.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) 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 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:
a. First, 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 (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); and
c. Third, the Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered 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 H▇▇▇▇▇’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 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.
(f) 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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(fg) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Abeona Therapeutics Inc.)
Shelf 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 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 6050.1% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the a “Selling Stockholder” section attached hereto as Annex Bof the type that is customary for transactions of this kind; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, sold thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail each Holder of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after in compliance with the effective date requirements of such Registration Statementthe Securities Act, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 be obligated agrees to use diligent commercially 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. The Company shall not be liable for any damages under this Agreement in connection with any Registrable Securities not registered for resale on a particular Registration Statement pursuant to this Section 2(b).
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)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 used diligent commercially 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 Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce the Total Registrable Securities represented by Underlying Shares, the Series H Underlying Class B Warrant Shares and the Debenture Class C Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Class B Warrant Shares and the Debenture and/or some Class C Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares Class B Holders and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Class B Warrant Shares and the Debenture Class C Warrant Shares held by such Class B Holders and Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 reasonable best efforts to file promptly 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 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. The Company shall not be liable for any damages under this Agreement in connection with any Registrable Securities not registered for resale on a particular Registration Statement pursuant to Sections 2(b) or 2(c).
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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 StatementStatement (subject to any reductions to such Registrable Securities being registered pursuant to Sections 2(b) or 2(c), which reductions shall, for the avoidance of doubt, not cause any damages under this Section 2(d)), 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded 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 earlier of (1) applicable Event is curedcured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions, 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 1.02.0% multiplied by the aggregate Subscription Amount amount paid by such Holder pursuant to the Purchase Agreementfor any unregistered Registrable Securities then held by such Holder. 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 1218% 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 parties agree that (1) notwithstanding anything to the contrary herein, no liquidated damages shall be payable with respect to any period after the expiration of the Effectiveness Period so long as the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions. The effectiveness deadline for a Registration Statement shall be extended without default or liquidated damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration on a timely basis results from the failure of a Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which the effectiveness deadline would be extended with respect to the Registrable Securities held only by such Holder). 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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 or F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3S-3 or F-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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 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 commercially 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.
(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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders), Shares and Exercise Shares; and
c. Third, the holders Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Conversion Shares and the holders of the Debenture Shares, as applicableheld by or issuable to 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 commercially reasonable 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 S-3 F-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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreementforegoing, the maximum amount of partial liquidated damages that a Holder may receive pursuant to this Section 2(d) shall not exceed 6% apply in the case of an Event pursuant to Section 2(d)(iv) if the Subscription Amount of such HolderCompany has used its commercially reasonable efforts to have the Registration Statement declared effective by the Effectiveness Date.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after 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 F-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Ucommune International LTD)
Shelf Registration. (a) On or prior to each Filing Date, the Company RCM shall prepare and file with the Commission file, not later than February 15, 1997, a Registration Statement covering with the resale of 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)) SEC and shall contain (unless otherwise directed by at least 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep have such Registration Statement continuously declared effective under for the Securities Act as to a Holder until purpose of facilitating the date that the Registrable Securities public resale of the Holder covered by such Registration Statement (iRestricted Stock subject to the limitations upon resale set forth at subparagraph 2(c) have been sold, thereunder or pursuant to Rule 144hereafter, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”)otherwise contained herein. The Company shall telephonically request effectiveness not be obligated to obtain a commitment from an underwriter relative to the sale of such Restricted Stock, whether in a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company public offering or private placement transaction; nor shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) Trading Day that the Company telephonically confirms effectiveness with be restricted in any manner from including the Commissiondistribution, which shall be the date requested for effectiveness issuance or resale of any other securities within such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 RCM agrees to promptly inform indemnify and hold harmless each of the Holders thereof Holders, requesting or joining in a registration, each underwriter (as defined in the Securities Act) if any managing the offering of the securities thereunder, each person who controls any such Holder or underwriter within the meaning of Section 15 of the Securities Act and/or Section 20 of the Exchange Act and use its commercially reasonable efforts to file amendments each of the officers, directors, employees and agents of the foregoing in their respective capacities as such, to the Initial fullest extent \PHILA2\99664_3 permitted by law, from and against any and all actions, suits, claims, proceedings, costs, losses, damages, judgments, amounts paid in settlement and expenses (including without limitation reasonable attorneys' fees and disbursements) to which any of them may become subject under the Securities Act or otherwise insofar as the same arise out of or are based on (i) any untrue or alleged untrue statement of any material fact contained in such Registration Statement as on the effective date thereof, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereof, (ii) any omission or alleged omission to state therein a material fact required by the Commission, covering the maximum number of Registrable Securities permitted to be registered stated therein or necessary to make the statements therein not misleading or (iii) any violation by the CommissionRCM of any federal or state law, on Form S-3 rule or regulation applicable to RCM and relating to action required of or inaction by RCM in connection with any such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, 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 612.09registration.
(c) Notwithstanding any other provision Public resale by the Holders of this Agreement and the Restricted Stock shall be 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(d) Iffollowing limitations: (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 no public resales by any of the Holders the opportunity to review and comment on the same as required by Section 3(a) hereinwill be permitted earlier than April 1, the Company shall be deemed to have not satisfied this clause (i)), or 1997; (ii) from April 1, 1997 through March 11, 1998 (the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days second anniversary of the date Closing) all public resales by M▇▇▇▇▇ ▇▇▇▇▇▇ and B▇▇▇▇ ▇▇▇▇▇▇, in the aggregate, will be limited to that number of shares of Restricted Stock that upon resale will yield gross proceeds to Messrs. Blaire and M▇▇▇▇▇ of $600,000, and no public resales will be permitted during this period by any of 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 other Holders; (iii) prior from March 11, 1998 (the second anniversary of the Closing through March 11, 1999 (the third anniversary of the Closing), each of the Holders will be permitted to effectuate the public resale of shares of Restricted Stock limited in a manner calculated under Rule 144(e) under the Act (as such Rule is in effect on the Closing), as though such shares of Restricted Stock were treated as "restricted securities" held by "affiliates" or "persons other than affiliates," whichever the case may be, to the effective date of a Registration Statementextent such terms are defined under Rule 144, 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained hereinhowever, in no event shall greater than 50,000 shares per week per Holder; and (iv) following March 11, 1999 (the Company third anniversary of the Closing), public resales of the Restricted Stock will be permitted without regard to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holdernumerical limitations under this subparagraph 2(c).
Appears in 1 contract
Sources: Registration Rights Agreement (RCM Technologies Inc)
Shelf 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 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 60% in interest of the HoldersRequired Purchasers) 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions no longer constitute Registrable Securities pursuant to Rule 144 and without clause (c) of the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders definition thereof (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding If at any time the registration obligations set forth in Section 2(a), if Staff of the Commission informs (the Company “Staff”) takes the position that the offering of some or all of the Registrable Securities cannot, as in the Registration Statement is not eligible to be made on a result of delayed or continuous basis under the application provisions of Rule 415, 415 under the Securities Act or requires any Holder to be registered for resale named as a secondary offering on a single registration statementan “underwriter”, the Company agrees shall use its best efforts to promptly inform each persuade the Staff that the offering contemplated by a Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter”. The Holders shall have the right to participate or have their counsel participate in any meetings or discussions with the Staff regarding the Staff’s position and to comment or have their counsel comment on any written submission made to the Staff with respect thereto. No such written submission shall be made to the Staff to which counsel to a Holder reasonably objects. In the event that, despite the Company’s best efforts and compliance with the terms of this Section 2(b), the Staff refuses to alter its position, the Company shall (i) notify 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(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 damagesdamages and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that prior to filing such amendment, the Company shall be obligated not agree to use diligent efforts to advocate with name any Holder as an “underwriter” in such Registration Statement without the Commission for the registration prior written consent of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09such Holder.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission Staff 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders of the Series Underlying Company shall reduce Registrable Securities represented by Shares and Pre-Funded Warrants (applied, in the holders case that some Shares and/or Pre-Funded Warrants may be registered, to the Holders on a pro rata basis based on the aggregate number of the Debenture Shares, as applicableunregistered Shares and Pre-Funded Warrants 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a “Shelf” Registration Statement covering the resale of all of the Registrable Securities that are not then registered outstanding on an effective Registration Statement such Filing Date for an offering to be made on a continuous basis pursuant to Rule 415. Each The Registration Statement filed hereunder shall be on Form S-3 (except if unless the Company is not then eligible to register for resale the Registrable Securities for resale 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 60% in interest of the HoldersHolders and except to the extent the Company determines that modifications thereto are required under applicable law) 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a the 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 prior to the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder 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 of the Holder covered by such Registration Statement (i) have been sold, thereunder sold or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent Company’s transfer agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(d) If: (i) the Initial a Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein), the Company shall not be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to under the 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 a Registration Statement will not be “reviewed,” or will not be subject to further review, review or (iii) prior to the effective date of a Registration Statementits Effectiveness Date, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within twenty-five (25) calendar days 15 Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for such a Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities filed or required to be filed hereunder is not declared effective by the Commission by the its Effectiveness Date of the Initial Registration StatementDate, or (v) after the effective date of Effectiveness Date, a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statementfor which it is required to be effective, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, Securities for more than twenty-five (25) 5 consecutive calendar days Trading Days or more than in any individual case an aggregate of fifty (50) calendar days 15 Trading Days during any 12 month period (which need not be consecutive calendar daysTrading Days) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses clause (i) and or (iv), ) the date on which such Event occurs, and or for purpose purposes of clause (ii) the date on which such five (5) Trading Day period is exceeded, and or for purpose purposes of clause (iii) the date on which such twenty-five (25) calendar day 15 Trading Day period is exceeded, and or for purpose purposes of clause (v) the date on which such twenty-five (25) 5 or fifty (50) calendar day 15 Trading Day period, as applicable, is exceeded 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 every monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) thereof until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% per month of the product of 1.0% (x) the Aggregate Number (as defined in the applicable Warrant) multiplied by (y) the aggregate Subscription Amount paid by such Holder pursuant to Exercise Price (as defined in the Purchase Agreementapplicable Warrant). If the Company fails to pay any partial liquidated damages pursuant to this Section 2(b) in full within seven days after the date payable, the Company will pay interest thereon at a rate of 1218% 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 pro-rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (ai) On or prior As soon as reasonably practicable after the date hereof, Acquiror shall file a "shelf" registration statement pursuant to each Filing Date, Rule 415 under the Company shall prepare and file Securities Act (the "Shelf Registration") with the Commission a Registration Statement covering the resale of respect to all of the Registrable Securities. Acquiror shall, subject to Section 3(f) hereof, use its reasonable efforts to cause the Shelf Registration to become effective no later than at or immediately following the Effective Time and shall use its reasonable efforts to keep the Shelf Registration continuously effective from the date such Shelf Registration is effective until the earlier of (A) the date on which all Registrable Securities that are not then registered on an effective Registration Statement for an offering to may be made on a continuous basis sold pursuant to Rule 415144(k) or (B) the second anniversary of the date of the Effective Time, in order to permit the prospectus forming a part thereof to be usable by the Holders during such period. Each The Shelf Registration Statement filed hereunder shall be on Form S-3 (except if provide for the Company is not then eligible to register for resale offering and sale of the Registrable Securities on Form S-3to or through brokers or dealers, acting as principal or agent, in transactions (which case may involve block transactions) on the New York Stock Exchange, in ordinary brokerage transactions, in negotiated transactions or otherwise, at market prices prevailing at the time of sale, at prices related to such registration shall be on another appropriate form prevailing market prices, at negotiated prices or otherwise (including without limitation sales in accordance herewithtransactions that comply with the provisions of Rule 144 or Rule 145, as applicable), or directly or indirectly through brokers or agents in private sales at negotiated prices, or through a combination of any such methods of sale, including but not limited to a bulk sale to a brokerage firm. In addition, subject to the provisions of Section 2(e3(h)) and , Acquiror shall contain be required to amend or supplement the Shelf Registration to provide for an underwritten public offering, whether on a firm commitment or best efforts basis or otherwise (unless otherwise directed an "Underwritten Takedown"), within a reasonable period of time after receipt by at least 60% in interest Acquiror of written notice from the Holders holding a majority of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex Bthen outstanding Registrable Securities requesting an Underwritten Takedown; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 offeringthat, subject to the provisions of Section 2(e3(f); with respect , Acquiror must receive such written notice within 180 days after the Effective Time (the "Underwritten Takedown Notice Period"). Acquiror shall not be required to filing on Form S-3 amend or other appropriate formsupplement the Shelf Registration to effect more than one (1) Underwritten Takedown, regardless of whether all, some or none of the Registrable Securities are sold pursuant to the Underwritten Takedown.
(ii) Acquiror shall supplement or amend the Shelf Registration, (A) as required by the registration form utilized by Acquiror or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, and subject (B) to include in such Shelf Registration any additional unregistered securities that become Registrable Securities by operation of the definition thereof and which are issued in respect to, or in exchange for or in replacement of, the Registrable Securities included in such Shelf Registration, unless such securities are otherwise registered under the Securities Act or (C) if and to the provisions extent reasonably requested by the Holders of Section 2(d) with respect to the payment of liquidated damages; Registrable Securities, provided, however, that prior such request and any required supplement or amendment shall relate only to filing material information about such amendment, Holder and included in or omitted from such Shelf Registration. Acquiror shall furnish to the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all Holders of the Registrable Securities to which the Shelf Registration relates copies of any such supplement or amendment sufficiently in accordance advance (but in no event less than three business days in advance) of its use and/or filing with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09Commission to allow the Holders a meaningful opportunity to comment thereon.
(ciii) Notwithstanding any The Shelf Registration may include other provision Securities 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares Acquiror which are held by such HoldersPersons who, the holders by virtue of the Series Underlying Shares and the holders of the Debenture Sharesagreements with Acquiror, as applicable). 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 are entitled 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 S-3 or such other form available to register for resale those Registrable include their Securities that were not registered for resale on the Initial Registration Statement, 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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holderregistration statement.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Stock Restriction and Registration Rights Agreement (Mohawk Industries Inc)
Shelf 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 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 60% 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via by facsimile or by e-mail of the effectiveness of a Registration Statement no later than as promptly as practicable, and in any event, within one (1) Trading Day that the Company telephonically confirms effectiveness with the CommissionDay, which shall be the date requested for effectiveness of such after any Registration StatementStatement is declared effective. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) on the second 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, 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 twenty-five fifteen (2515) consecutive calendar days or more than an aggregate of fifty twenty (5020) 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 twenty-five fifteen (2515) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five fifteen (2515) or fifty twenty (5020) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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 1.5% of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement for the Registrable Securities then held by such Holder; provided, however, that the Company shall not be required to make any payments pursuant to this Section 2(d) with respect to any Registrable Securities the Company is unable to register due to limits imposed by the Commission’s interpretation of Rule 415 under the Securities Act. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 6.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement for the Registrable Securities then held by such Holder. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Tetraphase Pharmaceuticals Inc)
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 thereof by the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) by the next 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) no later than one (1) Eastern Time on the Trading Day five (5) days 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 two (2) Trading Days of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Warrant Shares;
c. Third, the Series H Underlying Company shall reduce Registrable Securities represented by Conversion Shares and for the Debenture Shares (applied, in the case that some Underlying Commitment Shares;
d. Fourth, the Series H Underlying Company shall reduce the Registrable Securities represented by Conversion Shares and the Debenture Shares may be registered, for the HoldersNote; and
e. Fifth, the holders Company shall reduce the Registrable Securities represented by shares of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based Common Stock issuable as interest on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable)Note. 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 declared effective[reserved], 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any 12-month period or (vi) the Company shall fail for any reason to satisfy the current public information requirement under Rule 144 as to the applicable Registrable Securities (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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded and for purpose of clause (iv) the date that is sixty (60) days past the Effectiveness Date, 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 their pro-rata portion of $30,000, on the product Event Date and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter; provided, however, that such amount shall increase by an additional $15,000 on every thirty (30) day anniversary of 1.0% multiplied by an Event Date (pro-rated for periods totaling less than thirty days) if an Event is continuing and remains uncured. The foregoing liquidated damages shall not apply if the aggregate Subscription Amount paid by such Holder Registerable Securities may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 at the Purchase Agreementtime the Event occurs, provided that the Company shall also be in compliance with the current public information requirement under Rule 144 to the extent required. 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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(e2(d)) and shall contain (unless otherwise directed by at least 60% in interest of the HoldersPurchaser) substantially the such “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto disclosures as Annex Brequired by the instructions to Form S-3; provided, however, that no the Holder shall not be required to be named as an “underwriter” without such the Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders Holder (the “Effectiveness Period”). 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 promptly immediately notify the Holders Holder via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 Holder 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(e2(d); 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 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)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 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 Securitiesthe Holder, 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, Second the Company shall reduce Registrable Securities represented by Underlying Warrant Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 the 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(ea) 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 or (ii) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(fb) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any the Holder or affiliate of a the Holder as any an Underwriter without the prior written consent of such the Holder.
Appears in 1 contract
Shelf 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 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, (other than the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “and Series H I Underlying Shares”) Shares and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior Conversion Shares which are subject to the date hereof (the “Debenture Shares”reduction as set forth in Section 2(c)(b) below);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the shares of Common Stock underlying the Series H and Series I Preferred Stock (the “Series H and Series I Underlying Shares Shares”), and the Debenture Conversion Shares (applied, in the case that some Underlying Shares, Series H Underlying Shares, and Debenture Conversion Shares may be registered, to the Holders and the holders of the Series H and Series I Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Conversion Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Series I Underlying Shares, and Debenture Conversion Shares held by such Holders, Holders and the holders of the Series H and Series I Underlying Shares and the holders of the Debenture SharesDebentures Conversion Shares on an as-converted basis, disregarding any limitations on conversion therein, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a "Shelf" Registration Statement covering the resale of all 130% of the Registrable Securities that are not then registered on an effective Registration Statement such Filing Date for an offering to be made on a continuous basis pursuant to Rule 415. Each The Registration Statement filed hereunder shall be on Form S-3 (except if unless 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 60% in interest of the HoldersHolders and except to the extent the Company determines that modifications thereto are required under applicable law) 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 Holder’s express prior written consent. ANNEX A. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a the 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 prior to the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the when all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder sold or pursuant to Rule 144, or (ii) may be sold without 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, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent Company's transfer agent and the affected Holders (the “Effectiveness Period”"EFFECTIVENESS PERIOD"). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(d) If: (i) the Initial a Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial a Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein), the Company shall not be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to under the 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 a Registration Statement will not be “"reviewed” ," or will not be subject to further review, or (iii) prior to the effective date of a Registration Statementits Effective Date, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within twenty-five (25) calendar days 15 Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for such a Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities filed or required to be filed hereunder is not declared effective by the Commission by the its Effectiveness Date of the Initial Registration StatementDate, or (v) after the effective date of Effective Date, a Registration Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statementfor which it is required to be effective, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, Securities for more than twenty-five (25) 5 consecutive calendar days Trading Days or more than in any individual case an aggregate of fifty (50) calendar days 15 Trading Days during any 12 month period (which need not be consecutive calendar daysTrading Days) during any 12-month period (any such failure or breach being referred to as an “Event”"EVENT", and for purposes of clauses clause (i) and or (iv), ) the date on which such Event occurs, and or for purpose purposes of clause (ii) the date on which such five (5) Trading Day period is exceeded, and or for purpose purposes of clause (iii) the date which such twenty-five (25) calendar day 15 Trading Day period is exceeded, and or for purpose purposes of clause (v) the date on which such twenty-five (25) 5 or fifty (50) calendar day 15 Trading Day period, as applicable, is exceeded being referred to as “Event Date”"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 every monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) thereof until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 2.0% per month of (i) the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement for Securities then held by such Holder, and (ii) if the Warrants are "in the money" and then held by the Holder, the value of any outstanding Warrants (valued at the difference between the average VWAP during the applicable month and the Exercise Price multiplied by the number of shares of Common Stock the Warrants are exercisable into). 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 1215% 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 pro-rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to Event and shall be in lieu of any and all of the contrary in this Agreement penalties or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount might otherwise arise by reason of such HolderEvent unless such Event constitutes an Event of Default under the Debentures.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 of the Registrable Securities (or such maximum portion thereof as permitted by the SEC Guidance) 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 F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-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 60% a majority 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 Holder’s express prior written consent. B. Subject to the terms of this Agreement, the Company shall use its commercial 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 reasonably practicable after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(e); with respect to filing on Form S-3 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce or eliminate any securities to be included for exercise of the Placement Agent’s warrants; and
c. Third, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 S-3 F-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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar days Business 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 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, 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 twenty-five ten (2510) consecutive calendar days Business Days or more than an aggregate of fifty fifteen (5015) calendar days Business Days (which need not be consecutive calendar daysBusiness 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 twenty-five ten (2510) calendar day Business Day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day Business 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 curedcured (and pro-rated for any part of a month in which a cure is effected), 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 1.02.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement for any such unregistered Registrable Securities then held by such Holder. 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as an Underwriter in any Underwriter public disclosure without the prior written consent of such Holder; provided that if the Company is required by the SEC to name a Holder as an Underwriter, the Company shall promptly notify each such Holder of the legal requirement and give each such Holder an opportunity to persuade the SEC that said disclosure in not required. If the applicable Holders(s) are unable to eliminate the legal requirement to be identified as an underwriter and such Holder does not provide written consent within five (5) Trading Days of the initial notification by the Company, this Agreement shall terminate with respect to such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Rosetta Genomics Ltd.)
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of all of the applicable 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 F-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 60% in interest of the HoldersBuyer) 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 HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 1933 Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities 1933 Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) on the same Trading Day that the Company telephonically confirms effectiveness with the CommissionSEC, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission SEC 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) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission SEC informs the Company that all of the applicable 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 best efforts to file amendments to the Initial Registration Statement as required by the CommissionSEC, covering the maximum number of Registrable Securities permitted to be registered by the CommissionSEC, on Form S-3 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 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 SEC 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 SEC or any SEC Guidance sets forth a limitation on the number of applicable 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 SEC 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, determined by the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, Buyer in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable)its sole discretion. 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 HolderH▇▇▇▇▇’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 CommissionSEC, as promptly as allowed by Commission SEC or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-3 F-3 or such other form available to register for resale those applicable Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
(d) If: (i) the (A) Initial Registration Statement is not filed on or prior to its Filing Date with respect to the Warrant Shares, or (B) a Registration Statement is not filed with respect to Conversion Shares within fifteen (15) days after the occurrence of an Event of Default (as defined in the Note) (if the Company files either of the Initial Registration Statement aforementioned registration statements without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission SEC a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission SEC pursuant to the Securities 1933 Act, within five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission SEC 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-pre- effective amendment and otherwise respond in writing to comments made by the Commission SEC in respect of such Registration Statement within twenty-five twenty (2520) calendar days after the receipt of comments by or notice from the Commission SEC that such amendment is required in order for such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the applicable Registrable Securities is not declared effective by the Commission SEC by the applicable Effectiveness Date of the Initial for each such Registration Statement, 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 twenty-five fifteen (2515) consecutive calendar days or more than an aggregate of fifty thirty (5030) calendar days (which need not be consecutive calendar days) during any 12-month period period; or (vi) if a Registration Statement is not effective for any reason or the prospectus contained therein is not available for use for any reason, and either (x) the Company fails for any reason to satisfy the requirements of Rule 144(c)(1), including, without limitation, the failure to satisfy the current public information requirement under Rule 144(c), or (y) the Company has ever been an issuer described in Rule 144(i)(1)(i) or becomes such an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Current Public Information Failure”) as a result of which any of the Investors are unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions) (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i), (iv) and (ivvi), 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 twenty-five twenty (2520) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five fifteen (2515) or fifty thirty (5030) 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 lawlaw (including, without limitation, such event being deemed to be an Event of Default under the Note), 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 1.02.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to Principal amount then due and owing under the Purchase AgreementNote plus all accrued Interest (as defined in the Note) thereon. 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after 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 F-3 covering the Registrable Securities has been declared effective by the CommissionSEC.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (a) On or prior to each the Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of 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 6085% 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 HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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. 5:30 p.m. (New York City time) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Xtant Medical Holdings, Inc.)
Shelf 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 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 F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholder” section attached hereto as Annex B▇▇▇▇▇ ▇; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 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 commercially 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.
(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 commercially 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Common Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Common Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Common Warrant Shares held by such Holders); and
c. Third, the holders of the Series Underlying Company shall reduce Registrable Securities represented by Shares and Pre-Funded Warrants (applied, in the holders 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 the Debenture Shares, as applicableunregistered Shares and Pre-Funded Warrants 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 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 F-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.
(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) hereinherein or the Company subsequently withdraws the filing of the Registration Statement, the Company shall 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 request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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 StatementStatement (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, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, for more than twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.01.5% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after 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 F-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Psyence Biomedical Ltd.)
Shelf 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 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 6050.1% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the a “Selling Stockholder” section attached hereto as Annex Bof the type that is customary for transactions of this kind; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, sold thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail each Holder of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after in compliance with the effective date requirements of such Registration Statementthe Securities Act, file a final Prospectus with the Commission as required by Rule 424.. 4879-0208-0199\1
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 be obligated agrees to use diligent commercially 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. The Company shall not be liable for any damages under this Agreement in connection with any Registrable Securities not registered for resale on a particular Registration Statement pursuant to this Section 2(b).
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)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 used diligent commercially 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 reasonable best efforts to file promptly 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 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.. The Company shall not be liable for any damages under this Agreement in connection with any Registrable Securities not registered for resale on a particular Registration Statement pursuant to Sections 2(b) or 2(c). 4879-0208-0199\1
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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 StatementStatement (subject to any reductions to such Registrable Securities being registered pursuant to Sections 2(b) or 2(c), which reductions shall, for the avoidance of doubt, not cause any damages under this Section 2(d)), 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded 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 earlier of (1) applicable Event is curedcured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions, 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 1.02.0% multiplied by the aggregate Subscription Amount amount paid by such Holder pursuant to the Purchase Agreementfor any unregistered Registrable Securities then held by such Holder. 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 1218% 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 parties agree that (1) notwithstanding anything to the contrary herein, no liquidated damages shall be payable with respect to any period after the expiration of the Effectiveness Period so long as the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions. The effectiveness deadline for a Registration Statement shall be extended without default or liquidated damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration on a timely basis results from the failure of a Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in 4879-0208-0199\1 which the effectiveness deadline would be extended with respect to the Registrable Securities held only by such Holder). 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (ai) On or prior to each Filing Date, If the Company shall prepare and elects to file with the Commission a Shelf Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective or is otherwise required to file a Shelf 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-3this Section 2, 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company it shall use its commercial best efforts to cause a such Shelf Registration Statement filed under this Agreement to be declared effective by the Commission as soon as practicable. Any Shelf Registration Statement shall provide for the resale from time of time, and pursuant to any method or combination of methods legally available (including, without limitation, under Section 3(c)) an Underwritten Offering, a direct sale to be declared effective under the Securities Act as promptly as possible after the filing thereofpurchasers, but in any event no later than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder sale through brokers or pursuant to Rule 144agents, or (iia sale over the internet) may be sold without 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 Holders of any and all Registrable Shares. Anything contained in this Agreement to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 amendmentcontrary notwithstanding, the Company shall not be obligated to file any Shelf Registration Statement, nor 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for such cause any Shelf Registration Statement to be declared effective, or (iv) a nor have any other obligation under this Agreement with respect thereto, unless the Company receives an opinion of its legal counsel in such form, and dated as of such date, as the Company may request, to the effect that the filing of the Shelf Registration Statement registering for resale all and the use of the Registrable Securities is not declared effective Shelf Registration Statement to register the Shares by the Commission Company as contemplated by this Agreement, in each case, are in compliance with the Effectiveness Date of Securities Act and any other applicable federal securities laws, rules or regulations. In the Initial event the Company becomes obligated to take any action with respect to any Shelf Registration Statement, or the Company shall promptly request the legal opinion described in the previous sentence. In the event such legal opinion is not provided to the Company within ten (v10) business days 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 the Company requested such Event occursopinion, and for purpose then the Company shall, in lieu of clause all of its obligations under this Agreement with respect to such Shelf Registration Statement, perform as required by paragraph (ii) hereof.
(ii) This paragraph shall only be applicable in the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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, event the Company shall pay to each Holder an amount in cash, as partial liquidated damages and does not as a penalty, equal to receive the product of 1.0% multiplied legal opinion required by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreementparagraph (i) immediately above. If the Company fails to pay receives from any partial liquidated damages Holder a written request that the Company effect a registration pursuant to this Section in full within seven days after paragraph under the date payableSecurities Act with respect to Registrable Shares, the Company will pay interest thereon at will, as expeditiously as practicable, notify in writing all the Holders of such request and use its best efforts to effect a rate registration of 12% per annum (or such lesser maximum amount that is permitted the Registrable Shares requested to be paid by applicable law) to the Holderincluded in such registration; provided, accruing daily from the date such partial liquidated damages are due until such amountshowever, plus all such interest thereonthat, 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. Notwithstanding anything to the contrary in this Agreement or herein notwithstanding, (A) such registration shall be part of a firm commitment underwritten public offering with underwriters reasonably acceptable to the Purchase AgreementCompany, the maximum amount of liquidated damages that a Holder may receive and (B) such registration shall not exceed 6% be made on a delayed or continuous basis pursuant to Rule 415 of the Subscription Amount of such Holder.
(e) If Form S-3 is Securities Act or successor Rule, including but not available for limited to a Shelf Registration Statement without the registration consent 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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything Company. Anything to the contrary contained hereintherein notwithstanding, in no event the following provisions of this Agreement shall the Company be permitted apply to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holderregistration under this paragraph: 2(a)(iii), 2(c), 4, 5 and 6.
Appears in 1 contract
Sources: Registration Rights Agreement (Oxford Finance Corp)
Shelf Registration. (a) On or prior to each Filing DateFor purposes of this Agreement, the term "Registrable Securities" means (i) all of the shares of Common Stock purchased by you hereunder, (ii) any shares of Common Stock issued or issuable by the Company in respect of the shares of Common Stock purchased by you hereunder, whether by means of a stock split, stock dividend or otherwise and (iii) any other securities issued or issuable by the Company in respect of the shares of Common Stock referred to in clauses (i) and (ii), whether by means of a merger, consolidation, recapitalization, reorganization or similar event, but only if at the time of registration the Company shall have listed such other securities for trading on a national securities exchange or the Nasdaq National Market. The foregoing securities will cease to be Registrable Securities if and when they (i) have been registered by the Company under the Securities Act and either (A) disposed of pursuant to such registration statement or (B) such registration continues to be effective at the time of inquiry, (ii) have been sold, transferred, distributed or otherwise disposed of by you (other than upon your death by will or in accordance with the laws of descent and distribution), including any sale pursuant to Section 3.4 of this Agreement, or (iii) first become eligible for sale pursuant to Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"). The Company hereby agrees to prepare and file with the Securities and Exchange Commission a registration statement (the "Shelf Registration Statement"), in compliance with the Securities Act, under Rule 415 under the Securities Act (or any successor rule relating to continuous offerings by security holders), with respect to the resale of your Registrable Securities, provided that at the time of the filing of the Shelf Registration Statement the Company shall be eligible to use Form S-3 or Form S-8 (or any successor short-form registration statement available for such resale that permits incorporation by reference at least to the same extent as either such form) with respect to the disposition of such Registrable Securities. The Company shall (i) use commercially reasonable efforts to cause the Shelf Registration Statement to become effective no later than 9:00 a.m. on June 8, 2007 and (ii) maintain the effectiveness of the Shelf Registration Statement until the close of business on June 8, 2008; provided, however, that the Company's obligations under this paragraph shall be suspended during any period (A) when the Company shall conclude in its sole discretion, after consultation with its legal counsel, that it is advisable to suspend use of any prospectus as a result of pending corporate developments, the disclosure requirements of the securities laws or other events deemed material by the Company or (B) when the filing or effectiveness of the Shelf Registration Statement could, in the opinion of the Company, after consultation with its financial advisors, impair the Company's ability to pursue a financing, acquisition or other transaction; and provided further, that no period during which the use of any prospectus shall be suspended pursuant to clause (A) or clause (B) above shall continue for more than 120 days. The Company shall use commercially reasonable efforts to issue its quarterly earnings release sufficiently in advance of June 8, 2007 so that the Company's quarterly black-out period under its ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy shall not be in effect on June 8, 2007. The Company shall prepare and file with the Securities and Exchange Commission a such amendments and supplements to the Shelf Registration Statement covering and the resale of all of prospectus used in connection therewith as may be necessary in its opinion to comply with its obligations under this paragraph. If the Registrable Securities that Company's obligations under this paragraph are not then registered on an effective Registration Statement suspended 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreementany reason, the Company shall use promptly provide you with written or oral notice of both the commencement and termination of the period of suspension. After receipt of such notice, you shall not offer, sell, pledge, hypothecate, transfer, distribute or otherwise dispose of, in reliance on the Shelf Registration Statement, any of your Registrable Securities during any period in which the Company's obligations under this paragraph are suspended. In addition, you acknowledge that, in order to ensure compliance with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and other securities laws, the Company from time to time imposes restrictions on the trading of its commercial best efforts securities by its directors, officers, employees and others, and you agree to cause comply with those restrictions as long as they apply to you. It shall be a condition to the Company's obligations under this paragraph that you (i) shall have promptly taken all such actions as the Company shall reasonably request in connection with the Shelf Registration Statement filed under this Agreement and (includingii) shall have provided promptly (and in any event within seven business days) such information and other materials as the Company or its counsel shall request in connection with the Shelf Registration Statement. You represent, without limitationwarrant and agree that all such information provided by you or on your behalf shall be true, under Section 3(c)) to be declared effective under complete and correct. You shall comply with the Securities Act as promptly as possible after the filing thereofand any other laws, but in rules or regulations applicable to any event no later than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the disposition of Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Shelf Registration Statement. The Company shallshall pay all expenses incurred by it in complying with its obligations under this paragraph, including without limitation registration and filing fees, listing fees, printing expenses, messenger and delivery expenses, fees and expenses of the Company's counsel, fees and expenses of the Company's accountants, and the Company's internal expenses. You shall pay all expenses incurred by 9:30 a.m. (New York City time) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus you in connection with the Commission as required disposition of your Registrable Securities, including without limitation any broker's fees or commissions, selling expenses, messenger and delivery expenses, and fees and expenses of any counsel retained by Rule 424.
(b) Notwithstanding you. All of the registration Company's obligations set forth in Section 2(a), if under this paragraph shall terminate on the Commission informs the Company that date on which all of the your Registrable Securities cannot, as a result of may be sold at one time under Rule 144 under the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees Securities Act. Your rights under this paragraph are personal to promptly inform each of the Holders thereof you and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required non-transferable except by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 will or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, 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 laws of descent 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 distribution. You agree that the Company used diligent efforts to advocate with Company's obligations under this paragraph may be waived by the Commission for the registration holders of all or a greater portion majority 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 Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying (and other securities issued or issuable in respect thereof) acquired pursuant to Section 6.11(b) of the Agreement and Plan of Merger dated as of March 18, 2004 by and among the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) , IP Acquisition Corp., Intecap, Inc. and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof Company Stockholder Representative (the “Debenture Shares”as defined therein);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 amended from time 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 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 amendedtime.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a one or more Registration Statement Statements covering the resale of 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as and if required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five two (52) 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 commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary herein, in this Agreement or no event shall the Purchase Agreement, the maximum aggregate amount of liquidated damages that a (excluding interest) payable to the Holder may receive shall not exceed 6pursuant to this Section exceed, in the aggregate, 10.0% of the Subscription Amount of such Holderaggregate purchase price paid by the Purchasers for the Securities issued at Closing.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Xtant Medical Holdings, Inc.)
Shelf 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 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 F-1 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-1, 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 60% 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 Holder▇▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for provided the Company to be is in compliance with the current public information requirement under Rule 144144 (to the extent applicable), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically provide written request of effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 F-1 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 F-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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 S-3 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: (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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement up to an aggregate of 25% of the Subscription Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 F-1 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 F-1 as soon as reasonably practicable after 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 F-1 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Liquid Media Group Ltd.)
Shelf 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 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 6085% 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 BA; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent; provided, further, that in the event the Commission requires that a Holder be named as an “underwriter” and such Holder does not so consent, the Company shall not be required to include such Holder’s Registrable Securities in a Registration Statement, notwithstanding any provision to the contrary contained herein. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included by any Person other than Registrable Securities a Holder; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any 12-month period or (vi) any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the Registrable Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c) (any such failure or breach being referred to as an “Event”, and for purposes of clauses (i), (iv) and (ivvi), 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) calendar day period, as applicable, is exceeded being referred to as “Event Date”), thenthen except during any period of time in which the Holders may sell the Registrable Securities pursuant to Rule 144 without volume limitations, 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 AgreementAgreement with respect to the Registrable Securities affected by such Event and held by such Holder on such Event Date and each monthly anniversary thereof, up to a maximum of 6.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for such Registrable Securities. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder; provided, however, that in the event the Commission requires that a Holder be named as an “underwriter” and such Holder does not so consent, the Company shall not be required to include such Holder’s Registrable Securities in a Registration Statement, notwithstanding any provision to the contrary contained herein.
Appears in 1 contract
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a the Initial Registration Statement covering the resale of all of the Registrable Securities underlying the Preferred Stock and/or Warrants 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 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(e2(d)) and shall contain (unless otherwise directed by at least 6085% in interest of the HoldersHolders or otherwise modified by the Company to comply with applicable law, rule or regulation or to make any disclosure contained therein not misleading) 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable efforts to cause a US-DOCS\133667186.2 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale manner‑of‑sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request from the Commission for the effectiveness of a Registration Statement to be as of 5:00 p.m. (New York City time) on a Trading Day, provided that the actual effectiveness shall be subject to the Commission’s approval of such effectiveness. The Company shall promptly notify the Holders via facsimile or by e-mail e‑mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as if such filing is required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities on the Initial Registration Statement cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single such registration statement, then the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments an amendment 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 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(e2(d); 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 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, Securities Act Rules Compliance and Disclosure Interpretation Question 612.09.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)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 used diligent efforts to advocate with the Commission for the registration of all or a greater portion of the 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. i. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);Securities; 4 US-DOCS\133667186.2
b. ii. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
iii. Third, the holders Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Conversion Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days 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, then the Company will shall use its best commercially reasonable efforts to file with the Commission, as promptly thereafter 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (T2 Biosystems, Inc.)
Shelf 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 of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a delayed or 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 6085% 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 BA, with any changes required by SEC Guidance or SEC comments; provided, however, that no Holder shall be required to be named as an “underwriter” without such HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders and any restrictive legend is removed to permit the delivery of the securities via the facilities of DTC (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of as promptly as practicable, and in any event, within 24 hours, after the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 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 S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent commercially 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.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)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 used diligent commercially 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. (i) First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. (ii) Second, the Company shall reduce Registrable Securities represented by Underlying Pre-Funded Warrants, Pre-Funded Warrant Shares, the Series H Underlying Shares and the Debenture Common Warrants or Common Warrant Shares (applied, in the case that some Underlying Pre-Funded Warrants, Pre-Funded Warrant Shares, the Series H Underlying Shares and the Debenture Common Warrants and/or Common Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Pre-Funded Warrants, Pre-Funded Warrant Shares, Series H underlying Shares and the Debenture Common Warrants and/or Common Warrant Shares held by such Holders); and
(iii) Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunderhereunder (such shares cutback pursuant to this Section 2(c), the “Cut Back Shares”), the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such HolderH▇▇▇▇▇’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 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 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 and to use its reasonable best efforts to cause the Commission to declare such registration statement covering the Shares that were not registered for resale on the Initial Registration Statement, as amended, effective as soon as practicable after the date. No liquidated damages shall accrue as to any such Cut Back Shares until such date as the Company is able to effect the registration of such Cut Back Shares in accordance with any SEC Guidance applicable to such Cut Back Shares (such date, the “Restriction Termination Date”). From and after the Restriction Termination Date applicable to any Cut Back Shares, all of the provisions of this Section 2 (including the Company’s obligations with respect to the filing of a Registration Statement and its obligations to use reasonable efforts to have such Registration Statement declared effective within the time periods set forth herein and the liquidated damages provisions relating thereto) shall again be applicable to such Cut Back Shares; provided, however, that the date by which the Company is required to file the Registration Statement with respect to such Cut Back Shares shall be the tenth (10th) calendar day following the Restriction Termination Date and the date by which the Company is required to have the Registration Statement effective with respect to such Cut Back Shares shall be the 60th day immediately after the Restriction Termination Date, and provided further, that if the Commission is closed for operations due to a government shutdown, each such date shall be extended by the same number of Trading Days on which the Commission remains closed.
(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) hereinherein or the Company subsequently withdraws the filing of the Registration Statement, for reasons other than at the request of the Holders of a majority-in-interest of the Registrable Securities to withdraw the Registration Statement, the Company shall be deemed to have not satisfied this clause (i)) as of the Filing Date), or (ii) if applicable, the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five three (53) 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 twenty-five ten (2510) calendar 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 declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities included in such Registration Statement is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, or (v) other than as permitted in accordance with Section 3(i) hereof, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty twenty (5020) 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 three (53) Trading Day period is exceeded, and for purpose of clause (iii) the date which such twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty twenty (5020) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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, law the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 0.5% of the product aggregate amount paid pursuant to the Purchase Agreement by such Holder for each 30-day period or pro rata for any portion thereof until the applicable Event is cured; provided, however, that the parties agree that the maximum aggregate liquidated damages payable to a Holder shall be (3%) of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement in any 12-month period. If Such payments shall constitute the Holders’ exclusive monetary remedy for such events, but shall not affect the right of such Holders to seek injunctive relief. In the event that any liquidated damages payable by the Company fails to pay any partial liquidated damages pursuant to this Section 2(d) are not paid in full within seven five (5) days after the date payable, the Company will pay interest thereon at a rate of 1218.0% 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 For the avoidance of doubt, the liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month 30-day period prior to the cure of an Event. Notwithstanding anything in this Section 2(d) to the contrary in this Agreement or contrary, during any periods that the Purchase AgreementCompany is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities because any Investor fails to furnish information required to be provided pursuant to Section 3(a) within seven (7) calendar days of the Company’s request, the maximum amount of any liquidated damages that would otherwise accrue as to such Investor only shall be tolled until such information is delivered to the Company. No liquidated damages shall be payable if and to the extent that, despite best efforts by the Company to avoid a Holder may receive shall not exceed 6% of breach hereof, the Subscription Amount of such HolderCompany’s failure was caused by any government shutdown resulting in the Commission’s inability to review or declare effective the Registration Statement.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate Affiliate of a Holder as any Underwriter an underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Leap Therapeutics, Inc.)
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 reasonably possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as until the earliest to a Holder until occur of (i) the date that the all Registrable Securities of the Holder covered by such Registration Statement (ix) have been sold, thereunder or pursuant to Rule 144, or (iiy) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders Holders, (ii) the 24-month anniversary of the date hereof, or (iii) a Change of Control (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a the Registration Statement no later than one (1) on the same Trading Day that the Company telephonically confirms as such 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424occurs.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(e); with respect to filing on Form S-3 or other appropriate 266186520 v4 4 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the 266186520 v4 5 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any 12-month period (other than, in each case, during the time period(s) permitted by Section 3(j)) (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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 10.0% 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 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in 266186520 v4 6 effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (HTG Molecular Diagnostics, Inc)
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a one or more Registration Statement Statements covering the resale of 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 6085% in interest of the Holders) substantially the “Plan of Distribution” attached Distribution”attached hereto as Annex A and substantially the “Selling Stockholder” section Stockholder”section attached hereto as Annex B; provided, however, that no Holder shall be required to be named as an “underwriter” without underwriter”without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as and if required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the Holder at least five two (52) 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 commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary herein, in this Agreement or no event shall the Purchase Agreement, the maximum aggregate amount of liquidated damages that a (excluding interest) payable to the Holder may receive shall not exceed 6pursuant to this Section exceed, in the aggregate, 10.0% of the Subscription Amount of such Holderaggregate purchase price paid by the Purchasers for the Securities issued at Closing.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Xtant Medical Holdings, Inc.)
Shelf 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 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 60% in interest of the HoldersRequired Purchasers) 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 HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions no longer constitute Registrable Securities pursuant to Rule 144 and without clause (c) of the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders definition thereof (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding If at any time the registration obligations set forth in Section 2(a), if staff of the Commission informs (the Company “Staff”) takes the position that the offering of some or all of the Registrable Securities cannot, as in the Registration Statement is not eligible to be made on a result of delayed or continuous basis under the application provisions of Rule 415, 415 under the Securities Act or requires any Holder to be registered for resale named as a secondary offering on a single registration statementan “underwriter”, the Company agrees shall use its reasonable best efforts to promptly inform each persuade the Staff that the offering contemplated by a Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter”. The Holders shall have the right to participate or have their counsel participate in any meetings or discussions with the Staff regarding the Staff’s position and to comment or have their counsel comment on any written submission made to the Staff with respect thereto. No such written submission shall be made to the Staff to which counsel to a Holder reasonably objects. In the event that, despite the Company’s reasonable best efforts and compliance with the terms of this Section 2(b), the Staff refuses to alter its position, the Company shall (i) notify 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(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 damagesdamages and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that prior to filing such amendment, the Company shall be obligated not agree to use diligent efforts to advocate with name any Holder as an “underwriter” in such Registration Statement without the Commission for the registration prior written consent of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09such Holder.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission Staff 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities Securities; and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares shares of Common Stock beneficially held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 HolderH▇▇▇▇▇’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 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.
(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 (and, with respect to disclosure on such Holder, to comment) on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, or (viv) 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 twenty-five thirty (2530) consecutive calendar days or more than an aggregate of fifty forty five (5045) 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 (iviii), 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (viv) the date on which such twenty-thirty (30) or forty five (25) or fifty (5045) 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 curedcured or, if earlier, 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 Purchase Price paid by such Holder pursuant to the Purchase Agreement, provided, however, that the Company shall not be required to make any payments with respect to Registrable Securities which may be freely tradable pursuant to Rule 144. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
(g) Notwithstanding anything to the contrary in this Agreement, the Company may postpone for up to twenty (20) calendar days the filing or effectiveness of the Initial Registration Statement or any additional Registration Statement if the Board determines in its reasonable good faith judgment that such filing or effectiveness would (i) materially interfere with a significant acquisition, corporate organization, financing, securities offering or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act. The Company may delay such filing or effectiveness hereunder only one time in any period of 12 consecutive months.
Appears in 1 contract
Sources: Registration Rights Agreement (Dyadic International Inc)
Shelf 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 of the Registrable Securities that are not then registered on an effective Registration Statement and that are then permitted under the SEC Guidance to be included on such 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 60% 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 BA; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent, except as required by applicable law. Subject to the terms of this Agreement, the Company shall use its commercial reasonable best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c4(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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company cease to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424Registrable Securities.
(b) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that resale of all of the Registrable Securities cannot, as a result of the application of Rule 415the SEC Guidance, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each and provide a copy of the Holders applicable SEC Guidance to each Holder thereof and use its commercially reasonable best efforts to promptly file amendments to the Initial Registration Statement or one or more new Registration Statements as required by soon as any additional portion of the CommissionRegistrable Securities can be so registered pursuant to such SEC Guidance, 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(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 Registration Statement or amendment, the Company shall be obligated to use diligent its reasonable best efforts to advocate with the Commission for seek the registration of all of the Registrable Securities in accordance with the SEC Guidance, including including, without limitation, Compliance and Disclosure Interpretation 612.09. Notwithstanding anything herein to the contrary, the payment of liquidated damages by the Company pursuant to Section 2(d) or any other penalties to the Company shall not be required with respect to any delay or inability to register any of the Registrable Securities pursuant to a Registration Statement solely resulting from complying with the applicable SEC Guidance as described in the first sentence of this Section 2(b).
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)Agreement, if the Commission or any SEC Guidance sets forth a limitation on the number or type of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent its reasonable best efforts to advocate with the Commission for seek 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 and type of Registrable Securities to be registered on such Registration Statement will be reduced limited to the number and type permitted under the SEC Guidance. Any reduction in the number of Registrable Securities will be made as follows:
a. First: (a) first, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock and (the “Series H Underlying Shares”b) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Secondsecond, the Company shall reduce Registrable Securities represented by Underlying SharesSecurities, applied to the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares Registrable Securities held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). In the event of a cutback hereunder, the Company shall give the Holder at least five (5) three 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 reasonable best 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 StatementStatement (the “Cut Back Shares”), as amendedamended (the “Remainder Registration Statement”). From and after such date as the Company is allowed by the Commission or SEC Guidance to effect the registration of the resale of all such Cut Back Shares in accordance with any Commission restrictions applicable to such Cut Back Shares (the “Restriction Termination Date”), all of the provisions of this Section 2 (including the Company’s obligations with respect to the filing of a Registration Statement and its obligations to use its reasonable best efforts to have such Registration Statement declared effective within the time periods set forth herein) shall again be applicable to such Cut Back Shares; provided, however, that (i) the Filing Date for such Cut Back Shares shall be the 30th calendar day after such Restriction Termination Date, and (ii) the date by which the Company is required to obtain effectiveness with respect to such Cut Back Shares shall be the 60th calendar day immediately after the Restriction Termination Date (or, in the event of a “full review” by the Commission, the 90th calendar day following the date such Remainder Registration Statement is required to be filed hereunder). Notwithstanding anything herein to the contrary, the payment of liquidated damages by the Company pursuant to Section 2(d) or any other penalties to the Company shall not be required with respect to any delay or inability to register all of the Registrable Securities pursuant to a Registration Statement resulting from the limitation referred to in the first sentence of this Section 2(c).
(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) herein4(d), the Company shall 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 request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) writing 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 twenty-five (25) calendar 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 declared effective, or (iv) a Registration Statement registering for resale all of the Registrable Securities then eligible to be included in such Registration Statement, including, but not limited to, after any reduction in Registrable Securities included in such Registration Statement in accordance with Section 2(b) and Section 2(c), is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement, or (viv) 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, other than any period of time following the Company’s filing of any required post-effective amendment to a Registration Statement until such post-effective amendment is declared effective, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, other than due to the Holder’s knowledge of or access to material non-public information of the Company, for more than twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) calendar days (which need not be consecutive calendar days) during any 12-month twelve (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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 purchase price paid by such Holder pursuant to the Purchase AgreementAgreement with respect to the remaining Registrable Securities included in such Registration Statement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 4% of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement with respect to the remaining Registrable Securities included in such Registration Statement. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 128% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) In the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company, upon request of such Holder, shall promptly use its reasonable best efforts to cause the resale of such Registrable Securities to be covered by (1) an existing Registration Statement or (2) a new Registration Statement and cause the same to become effective as soon as practicable after such filing and such new Registration Statement shall be subject to the terms hereof. The Holders may request not more than one (1) Registration Statement per year pursuant to this Section 2(f), provided that this Section 2(f) shall not affect or limit any Holder's rights under the other provisions of Section 2 and Section 3.
(g) At any time and from time to time when an effective Registration Statement is on file with the Commission, any Holder (a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Registration Statement, including a Block Trade (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holders with a total offering price reasonably expected to exceed, in the aggregate $500,000 (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Within five (5) days of receipt of this notice, the Company must notify all of the Holders of Registrable Securities of the Underwritten Shelf Takedown. The Company shall include in any Underwritten Shelf Takedown the securities requested to be included by any other Holder (each a “Takedown Requesting Holder”). The Demanding Holders shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the Company’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). The Holders may demand not more than one (1) Underwritten Shelf Takedown per year. Notwithstanding anything to the contrary contained hereinin this Agreement, the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form S-3, that is then available for such offering. The Company shall enter into an underwriting agreement in a form as is customary in Underwritten Offerings of securities by the Company with the managing Underwriter or Underwriters and shall take all such other reasonable actions as are requested by the managing Underwriter or Underwriters in order to expedite or facilitate the disposition of such Registrable Securities. In connection with any Underwritten Shelf Takedown contemplated by this paragraph, the underwriting agreement into which each Holder and the Company shall enter shall contain such representations, covenants, indemnities and other rights and obligations of the Company and the selling stockholders as are customary in underwritten offerings of securities.
(i) If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in no event shall good faith, advises the Company, the Demanding Holders and the Takedown Requesting Holders (if any) (collectively, the “Requesting Holders”) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Takedown Requesting Holders (if any) desire to sell, taken together with all other Common Stock or other equity securities that the Company desires to sell and the Common Stock, if any, that have been requested to be permitted sold in such Underwritten Offering pursuant to name separate written contractual piggy-back registration rights held by any Holder other stockholders of the Company, exceeds the maximum dollar amount or affiliate maximum number of a Holder as any Underwriter equity securities that can be sold in the Underwritten Offering without adversely affecting the prior written consent proposed offering price, the timing, the distribution method, or the probability of success of such Holder.offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (A) first, the Registrable Securities of the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Requesting Holder (if any) has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Requesting Holders have requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the for
Appears in 1 contract
Shelf 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 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(e2(d)) and shall contain (unless otherwise directed by at least 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial commercially reasonable 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 commercial commercially reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of (A) the date that is the one year anniversary from the date of this Agreement or (B) the date that all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(e2(d); 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 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)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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for pro rata amongst the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 commercially reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five twenty (2520) consecutive calendar days or more than an aggregate of fifty thirty (5030) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five twenty (2520) or fifty thirty (5030) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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 (A) 1.0%; (B) the Per Share Purchase Price; and (C)) the number of Shares held by the Purchaser on the Event Date. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement, together with the maximum aggregate Public Information Failure Payments pursuant to the Purchase Agreement, shall be 6% multiplied by 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 1215% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Processa Pharmaceuticals, Inc.)
Shelf 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 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 F-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3F-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 6085% 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 HolderH▇▇▇▇▇’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) on the second 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 F-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares Warrant ADSs (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares Warrant ADSs may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying SharesWarrant
c. Third, Series H underlying Shares and the Debenture Shares Company shall reduce Registrable Securities represented by the ADSs (applied, in the case that some ADSs may be registered, to the Holders on a pro rata basis based on the total number of unregistered ADSs held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). In the event of a cutback hereunder, the Company shall give the Holder at least five three (53) Trading Days prior written notice along with the calculations as to such HolderH▇▇▇▇▇’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 S-3 F-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.
(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) hereinherein or the Company subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.01.5% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement; provided, however, the aggregate amount payable to a Holder shall not exceed 10% of such Holder’s Subscripton Amount. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 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 S-3 F-3 as soon as reasonably practicable after 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 F-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (TC BioPharm (Holdings) PLC)
Shelf Registration. Within 60 days after the Holder requests the Company to file a Registration Statement with respect to the Registrable Securities (a) On or provided that the Holder shall not be entitled to make such a request prior to each Filing Datethe date the Company becomes eligible to file a Registration Statement (with respect to the sale of the Shares by the Holder) on Form S-3 under the Securities Act), the Company shall prepare and file with the Commission a Registration Statement covering providing for the resale of all sale of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis by the Holder 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 60% in interest 415 of the Holders) substantially Securities Act and/or any similar rule that may be adopted by the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex BSEC; provided, however, that no the Holder shall be required to be named as an “underwriter” without not sell, transfer, pledge or otherwise dispose of any Registrable Securities while such Holder’s express prior written consent. Subject Registration Statement remains effective, except during the ten (10) business days immediately following the second business day following the release by the Company to the terms public of this Agreementquarterly or annual earnings. Notwithstanding the foregoing, if the Company shall furnish to the Holder a certificate signed by the President of the Company stating that, in the good faith judgment of the President of the Company, the Company is in receipt of material, undisclosed information, the disclosure of which would be detrimental to the Company, then the Holder shall use its commercial best efforts to cause a Registration Statement filed under this Agreement (includingnot sell, without limitationtransfer, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in pledge or otherwise dispose of any event no later than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be period or periods specified in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 damagescertificate; provided, however, that prior the Holder shall not be so restricted with respect to filing such amendmentsales, 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 Guidancetransfers, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding any pledges or other provision of this Agreement and subject to the payment of liquidated damages dispositions 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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, sentence or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, next succeeding sentence for more than twenty-five (25) consecutive calendar days or more than an aggregate of fifty ninety (5090) calendar days (which need in any fiscal year of the Company. If at any time after the Company files a Registration Statement hereunder the Company decides to make a public offering of securities through one or more underwriters, and an underwriter selected by the Company to manage such proposed underwriting advises the Company that it believes that such underwritten offering could be adversely affected by the concurrent registered offering of Registrable Securities pursuant hereto, then the Holder shall not be consecutive calendar days) sell, transfer, pledge or otherwise dispose of any Registrable Securities at the request of the Company during any 12-month such public offering of securities; provided further, that the aggregate period (of any such failure or breach being referred to as an “Event”restriction, and for purposes of clauses (i) and (iv), when taken together with 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 restriction imposed by such date) until the applicable Event is cured, the Company shall pay pursuant to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1.0% multiplied certificate signed by the aggregate Subscription Amount paid by such Holder President of the Company 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 payableprevious sentence, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% ninety (90) days in any fiscal year of the Subscription Amount of such HolderCompany.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Saturn Electronics & Engineering Inc)
Shelf Registration. (a) 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 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 60% in interest Holders of eighty-five percent (85%) of the Registrable Securities (the “Required 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 Holder’s express prior written consent; provided further if a Holder is so required by the SEC by comment letter or otherwise and does not consent thereto, the Company shall be relieved of its obligations to include such Holder in the Registration Statement, which shall not constitute an Event or entitle Holder to receive liquidated damages hereunder. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date earliest of the dates that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without 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 Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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 (b1) Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all Trading Day of the Registrable Securities cannot, as a result such notification 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 effectiveness or failure to file amendments to the Initial Registration Statement a final Prospectus 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(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 foresaid 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 deemed an Event under 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Unique Fabricating, Inc.)
Shelf 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 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 herewithherewith (including Form S-1), subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by Purchaser and at least 6051% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding the registration obligations set forth in Section 2(a), 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 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 for resale 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(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 be obligated to use diligent reasonable best 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:
a. (i) First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. (ii) Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
(iii) Third, the holders Company shall reduce Registrable Securities represented by Common Stock (applied, in the case that some Common Stock may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying Shares and the holders of the Debenture Shares, as applicableunregistered Common Stock 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 HolderH▇▇▇▇▇’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 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty fifteen (5015) 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 twenty-five ten (2510) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty fifteen (5015) 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 1.02.0% 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 1210% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (a) On The Company will, subject to Sections 3.1 and 3.13 hereof, cause a registration statement on Form S-1 or prior Form S-3 relating to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made by the Registrable Securityholders 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective 415 under the Securities Act (the “Registration Statement”), to be filed with the Commission as promptly as possible after following the filing thereof, but date hereof and in any event no later than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until sixty (60) days following the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders hereof (the “Effectiveness PeriodFiling Deadline”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a)this Agreement, if in the event 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 (i) inform each of the Holders Registrable Securityholders thereof and use its commercially reasonable efforts to file amendments to the Initial initial Registration Statement as required by the CommissionCommission and/or (ii) withdraw the initial Registration Statement and file a new Registration Statement, in either case covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendmentamendment or new Registration Statement, the Company shall be obligated to use diligent its commercially 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.
(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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 initial Registration Statement in accordance with or files a new Registration Statement, as the foregoingcase may be, under clauses (i) or (ii) above, the Company will use its best 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 the Company to register for resale those Registrable Securities that were not registered for resale on the Initial initial Registration Statement, as amended.
(d) If: (i) , or the Initial new Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Statement. No Registrable Securityholder shall be named as an “underwriter” in any Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the Securityholder’s prior written consent of such Holderconsent.
Appears in 1 contract
Sources: Registration Rights Agreement (HUGHES Telematics, Inc.)
Shelf Registration. (a) On or prior to each Filing Date, the The Company shall prepare and as promptly as reasonably practicable file with the Commission SEC a Registration Statement covering the resale of 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 415415 covering all of the Registrable Securities (the "Initial Shelf Registration"). Each The Company shall use its reasonable best efforts to file with the SEC the Initial Shelf Registration Statement filed hereunder on or prior to the Filing Date. The Initial Shelf Registration 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 or another appropriate form permitting registration of such Registrable Securities for resale by Holders in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed manner or manners designated by at least 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed under this Agreement them (including, without limitation, one or more underwritten offerings). The Company shall not permit any securities other than the Registrable Securities to be included in the Initial Shelf Registration or any Subsequent Shelf Registration (as defined below). By its execution hereof on behalf of itself and the other Initial Purchasers, Credit Suisse First Boston Corporation also hereby waives on its own behalf its right under Section 3(c)) the Registration Rights Agreement, dated February 4, 1999, between the Company and it, to include any securities in a Registration Statement filed pursuant to this Agreement. The Company shall use its reasonable best efforts to cause the Initial Shelf Registration to be declared effective under the Securities Act as promptly as possible after on or prior to the filing thereof, but in any event no later than the applicable Effectiveness Date, Date and shall use its commercial best efforts to keep such the Initial Shelf Registration Statement continuously effective under the Securities Act as to a Holder until the date that is 24 months from the Registrable Securities of the Holder covered by such Registration Statement Issue Date (as it may be shortened pursuant to clause (i) have been sold, thereunder or pursuant to Rule 144, or clause (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without immediately following, the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “"Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a"), if or such shorter period ending when (A) all 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 shares of Registrable Securities permitted to be registered covered 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(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 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 Initial Shelf 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, have been sold in the case that some Underlying Shares, the Series H Underlying Shares manner set forth and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 contemplated in the Initial Registration Statement in accordance with the foregoingShelf Registration, 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 (iiB) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 (iix) undertake to register the Registrable Securities on Form S-3 as soon as reasonably practicable after such form is available, provided that held by persons who are not affiliates of the Company shall maintain may be resold pursuant to Rule 144(k) under the effectiveness Securities Act or (y) cease to be outstanding, or (C) a Subsequent Shelf Registration covering all of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by under the CommissionSecurities Act.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (American Tower Corp /Ma/)
Shelf 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 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(e2(d)) and shall contain (unless otherwise directed by at least 60% 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (ix) have been sold, thereunder or pursuant to Rule 144, or (iiy) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a notify the Holders by facsimile or e-mail as promptly as practicable, and in any event, within one (1) Trading Day, after any Registration Statement as of 5:00 is declared effective. The Company shall, by 5:30 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) second Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(e2(d); 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 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, 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Pre-Funded Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Pre-Funded Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Pre-Funded Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld by such Holders). In the event of a cutback hereunder, the Company shall give the each Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotmentallotment of Registrable Securities to be registered on such Registration Statement. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its best 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five fifteen (2515) calendar 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 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, or (v) after the effective date of a Registration StatementStatement but prior to the end of the Effectiveness Period, 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 twenty-five thirty (2530) consecutive calendar days or more than an aggregate of fifty sixty (5060) calendar days (which need not be consecutive calendar days) during any 12-month twelve (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 twenty-five fifteen (2515) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five thirty (2530) or fifty sixty (5060) calendar day period, as applicable, is exceeded being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, 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 of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase AgreementAgreement for the Registrable Securities then held by such Holder; provided, however, that the Company shall not be required to make any payments pursuant to this Section 2(d) with respect to any Registrable Securities the Company is unable to register due to limits imposed by the Commission’s interpretation of Rule 415 under the Securities Act as contemplated by Section 2(b). The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 10.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement for the Registrable Securities then held by such Holder, and that in no event shall the Company be required to pay to a Holder under this Agreement liquidated damages in any thirty (30) day period in excess of 1.0% of the aggregate Subscription Amount paid by such Holder. If the Company fails to pay any partial liquidated damages pursuant to this Section 2(d) in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 121.0% per annum month (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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter an underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Trevi Therapeutics, Inc.)
Shelf 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 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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 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 S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment, 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and(other than any Series H, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “I and Series H J Underlying Shares”) Shares and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior Conversion Shares which are subject to the date hereof (the “Debenture Shares”reduction as set forth in Section 2(c)(b) below);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the shares of Common Stock underlying the Series H H, Series I and Series J Preferred Stock (the “Series H, Series I and Series J Underlying Shares Shares”), and the Debenture Conversion Shares (applied, in the case that some Underlying Shares, Series H Underlying Shares, and Debenture Conversion Shares may be registered, to the Holders and the holders of the Series H H, Series I and Series J Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Conversion Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares H, Series I and the Series J Underlying Shares, and Debenture Conversion Shares held by such Holders, Holders and the holders of the Series H, Series I and Series J Underlying Shares and the holders of the Debenture SharesDebentures Conversion Shares on an as-converted basis, disregarding any limitations on conversion therein, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of (i) the date that the all Registrable Securities of the Holder covered by such Registration Statement (iA) have been sold, thereunder or pursuant to Rule 144, or (iiB) may be sold without volume or manner-of-manner of sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders or (ii) six (6) months following the later of (A) the date on which neither the Notes nor the Preferred Stock are outstanding or (B) the date on which the Warrants have expired or been exercised in full (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern Time on the second 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Securities Purchase Agreement (BioRestorative Therapies, Inc.)
Shelf Registration. (ai) On As promptly as possible, and in any event on or prior to each the thirtieth (30th) day following the Closing Date (the “Filing Date”), the Company shall prepare and file with the Commission SEC a “Shelf” Registration Statement covering the resale of 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 The Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject with the Securities Act and the Exchange Act and as consented to by the provisions of Section 2(e)Buyers) and shall contain (unless except if otherwise directed by at least 60% in interest of the HoldersBuyers or the SEC) 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Exhibit D.
(ii) The Company shall use its commercial reasonable best efforts to cause a the Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under by the Securities Act SEC as promptly as possible after the filing thereof, but in any event prior to (A) the 90th calendar day following the Closing Date, (B) the 120th calendar day following the Closing Date in the case of any review by the SEC or (C) the 5th calendar following oral or written notification from the SEC that there will be no later than review (the applicable “Required Effectiveness Date”), and shall use its commercial reasonable best efforts to keep such the Registration Statement continuously effective under the Securities Act as to a Holder until the earlier of the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder sold or pursuant to Rule 144, or (ii) may can be sold without 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 publicly under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders 144(k) (the “"Effectiveness Period”"). .
(iii) The Company shall telephonically request effectiveness of a notify the Buyers in writing promptly (and in any event within two business days) after receiving notification from the SEC that the Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424has been declared effective.
(biv) Notwithstanding Should an Event (as defined below) occur, then upon the registration obligations set forth in Section 2(a), if the Commission informs the Company that all occurrence 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(e); with respect to filing on Form S-3 or other appropriate formEvent, 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 every monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) thereof until the applicable Event is cured, as partial relief for the damages suffered therefrom by the Buyers (which remedy shall not be exclusive of any other remedies available under this Agreement, at law or in equity), the Company shall pay to each Holder Buyer an amount in cash, as partial liquidated damages and not as a penalty, equal to the product of 1.0% multiplied by (the “Percentage”) of the aggregate Subscription Amount Purchase Price paid or payable by such Holder Buyer for the Securities; provided that if the Event shall continue for three (3) months, beginning with the fourth month, the Percentage shall be increased to 2%. The payments to which a Buyer shall be entitled pursuant to this Section 6(b)(iv) are referred to herein as "Event Payments". In the Purchase Agreement. If event the Company fails to pay any partial liquidated damages pursuant to this Section make Event Payments in full within seven days after a timely manner, such Event Payments shall bear interest at the date payable, the Company will pay interest thereon at a rate of 121.0% 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 month until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages For such purposes, each of the following shall constitute an “Event”:
(1) the Registration Statement is not filed on or prior to the Filing Date or is not declared effective on or prior to the Required Effectiveness Date, except as a result of any action or inaction of Buyers;
(2) except (A) as provided for in Section 6(b)(v), (B) if the Company is involved in a "Rule 13e-3 transaction" as defined in Rule 13e-3 under the Exchange Act, or (C) a merger or consolidation of the Company or a sale of more than one-half of the assets of the Company in one or a series of related transactions, unless following such transaction or series of transactions, the holders of the Company's securities prior to the first such transaction continue to hold at least 50% of the voting rights and equity interests of the surviving entity or acquirer (clauses (B) and (C), collectively, the "Excluded Events"), after the Effective Date, a Buyer is not permitted to sell Registrable Securities under the Registration Statement (or a subsequent Registration Statement filed in replacement thereof) for any reason (other than the fault of such Buyer) for five or more Trading Days (whether or not consecutive);
(3) except as a result of the Excluded Events, the Common Stock is not listed or quoted, or is suspended from trading, on an Eligible Market for a period of three Trading Days (which need not be consecutive Trading Days) during the Effectiveness Period;
(4) the Company fails for any reason to deliver a certificate evidencing any Securities to a Buyer within three Trading Days after delivery of such certificate is required pursuant to any Transaction Document or the exercise rights of the Buyers pursuant to the terms hereof shall apply on a daily pro rata basis Warrants are otherwise suspended for any portion reason; or
(5) the Company fails to have available a sufficient number of authorized but unissued and otherwise unreserved shares of Common Stock available to issue Warrant Shares upon any exercise of the Warrants or, except as a month prior to result of the cure of Excluded Events, during the Effectiveness Period, any Common Shares or Warrant Shares are not listed on the New York Stock Exchange, the American Stock Exchange, The NASDAQ National Market or The NASDAQ SmallCap Market (an Event. “Eligible Market”).
(v) Notwithstanding anything to the contrary in this Agreement or to the Purchase Agreementcontrary, the maximum amount after 30 consecutive Trading Days of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the continuous effectiveness of the Registration Statement then in effect until such time as filed and declared effective pursuant to this Agreement, the Company may, by written notice to the Buyers, suspend sales under a Registration Statement on Form S-3 covering after the Effective Date thereof and/or require that the Buyers immediately cease the sale of shares of Common Stock pursuant thereto and/or defer the filing of any subsequent Registration Statement if the Company is engaged in a material merger, acquisition or sale and the Board of Directors determines in good faith, by appropriate resolutions, that, as a result of such activity, (A) it would be materially detrimental to the Company (other than as relating solely to the price of the Common Stock) to maintain a Registration Statement at such time and (B) it is in the best interests of the Company to defer proceeding with such registration at such time. Upon receipt of such notice, each Buyer shall immediately discontinue any sales of Registrable Securities pursuant to such registration until such Buyer has been declared effective received copies of a supplemented or amended Prospectus or until such Buyer is advised in writing by the Commission.
Company that the then-current Prospectus may be used and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. In no event, however, shall this right be exercised to suspend sales beyond the period during which (fin the good faith determination of the Company's Board of Directors) Notwithstanding anything the failure to require such suspension would be materially detrimental to the contrary contained hereinCompany. The Company's rights under this Section 6(b)(v) may be exercised for a period of no more than 20 consecutive Trading Days at a time or 30 Trading Days in any twelve-month period, in no event shall without such suspension being considered as part of an Event Payment determination. Immediately after the end of any suspension period under this Section 6(b)(v), the Company be permitted shall take all necessary actions (including filing any required supplemental prospectus) to name any Holder or affiliate restore the effectiveness of a Holder as any Underwriter without the prior written consent applicable Registration Statement and the ability of the Buyers to publicly resell their Registrable Securities pursuant to such Holdereffective Registration Statement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Paincare Holdings Inc)
Shelf Registration. (a) On or prior to each The Company shall, no later than the Filing Date, the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of 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 415415 under the 1933 Act registering the resale by Holders thereof of the Registrable Securities (the "Shelf Registration"). Each The Shelf Registration Statement filed hereunder shall be on Form S-3 (except if under the Company is not then eligible to register 1933 Act or another appropriate form permitting registration of such Registrable Securities for resale by the Holders in the manner or manners reasonably designated by them (including, without limitation, one or more underwritten offerings). The Company shall not permit any securities other than Registrable Securities to be included in the Shelf Registration. The Company shall use its best efforts to cause the Registration Statement to be declared effective by the SEC as promptly as practicable, but no later than the Effectiveness Target Date, and to keep such Registration Statement effective, supplemented and amended as required, in order to permit the Prospectus forming a part thereof to be useable by the Holders until the earliest of (i) the date that is two years after the last date of original issuance of any of the Notes, (ii) the date when the Holders are able to sell all of their Securities immediately without restriction pursuant to the volume limitation provisions of Rule 144 under the 1933 Act or otherwise, or (iii) all of the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith, subject covered by the Registration Statement have been sold pursuant to the provisions of Section 2(eRegistration Statement (the "Effectiveness Period")) and shall contain (unless otherwise directed by at least 60% 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 the Effectiveness Period in respect of the Registration Statement shall be extended to the extent required to be named permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the 1933 Act and as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreementotherwise provided herein.
(b) Notwithstanding any other provisions hereof, the Company shall use its commercial 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 commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date ensure that the Registrable Securities of the Holder covered by such Registration Statement (i) have been soldany Registration Statement and any amendment thereto and any Prospectus forming a part thereof and any supplements thereto complies in all material respects with the 1933 Act, thereunder or pursuant to Rule 144, or (ii) may be sold without volume any Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or manner-of-sale restrictions pursuant omit to Rule 144 and without the requirement for the Company state a material fact required to be in compliance with stated therein or necessary to make the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to statements therein not misleading and (iii) any Prospectus forming a written opinion letter part of any Registration Statement and any amendment or supplement to such effectProspectus, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness does not include an untrue statement of a Registration Statement as of 5:00 p.m. (New York City time) on material fact or omit to state a Trading Day. The Company shall promptly notify material fact necessary in order to make the Holders via facsimile or by e-mail statements therein, in the light of the effectiveness of a Registration Statement no later than one (1) Trading Day that the Company telephonically confirms effectiveness with the Commissioncircumstances under which they were made, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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 612.09not misleading.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d)The Company further agrees, if necessary, to supplement or amend 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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(a3(b) hereinbelow, the Company shall be deemed and to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant furnish to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(e) If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, copies of any such supplement or amendment promptly after its being used or filed with 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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the CommissionSEC.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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 60% in interest of the HoldersRequired Purchasers) 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions no longer constitute Registrable Securities pursuant to Rule 144 and without clause (c) of the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders definition thereof (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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) Notwithstanding If at any time the registration obligations set forth in Section 2(a), if staff of the Commission informs (the Company “Staff”) takes the position that the offering of some or all of the Registrable Securities cannot, as in the Registration Statement is not eligible to be made on a result of delayed or continuous basis under the application provisions of Rule 415, 415 under the Securities Act or requires any Holder to be registered for resale named as a secondary offering on a single registration statementan “underwriter”, the Company agrees shall use its best efforts to promptly inform each persuade the Staff that the offering contemplated by a Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that none of the Holders is an “underwriter”. The Holders shall have the right to participate or have their counsel participate in any meetings or discussions with the Staff regarding the Staff’s position and to comment or have their counsel comment on any written submission made to the Staff with respect thereto. No such written submission shall be made to the Staff to which counsel to a Holder reasonably objects. In the event that, despite the Company’s best efforts and compliance with the terms of this Section 2(b), the Staff refuses to alter its position, the Company shall (i) notify 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(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 damagesdamages and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the Staff may require to assure the Company’s compliance with the requirements of Rule 415; provided, however, that prior to filing such amendment, the Company shall be obligated not agree to use diligent efforts to advocate with name any Holder as an “underwriter” in such Registration Statement without the Commission for the registration prior written consent of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09such Holder.
(c) Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission Staff 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, Conversion Shares underlying the Series H Underlying Shares and the Debenture Shares C-2 Preferred Stock (applied, in the case that some Underlying Shares, Conversion Shares underlying the Series H Underlying Shares and the Debenture Shares C-2 Preferred Stock may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Conversion Shares held by such Holders); and
c. Third, the holders of Company shall reduce Registrable Securities represented by Conversion Shares underlying the Series Underlying C-1 Preferred Stock (applied, in the case that some Conversion Shares and underlying the holders Series C-1 Preferred Stock may be registered, to the Holders on a pro rata basis based on the total number of the Debenture Shares, as applicable). unregistered Conversion Shares held by such Holders) In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written 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 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.
(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 (and, with respect to disclosure on such Holder, to comment) on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, or (viv) 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 twenty-five thirty (2530) consecutive calendar days or more than an aggregate of fifty forty five (5045) 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 (iviii), 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (viv) the date on which such twenty-thirty (30) or forty five (25) or fifty (5045) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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; provided, however, subject to Section 2(f), in lieu thereof the Company, in its sole discretion, may elect to include the Registrable Securities in the Merger Registration Statement. Each Registration Statement (other than the Merger 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 6051% 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 Holder’s express prior written consent. Subject to the terms of this AgreementAgreement and in the event that the Registrable Securities are not included in the Merger Registration Statement, the Company shall use its commercial best commercially reasonable efforts to cause a Registration Statement covering the resale of all of the Registrable Securities that are not then registered pursuant to the Proxy Statement/Prospectus filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as possible after on the filing thereof, but in any event no later than date that the applicable Effectiveness Date, Transaction is consummated and shall use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, sold thereunder or pursuant to Rule 144, or (ii) may be sold pursuant to Rule 144 without volume or manner-of-sale restrictions and without current public information (including pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144144(i)(2)), as reasonably determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to Company; or (iii) two years from the Transfer Agent and the affected Holders Closing Date (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.Eastern
Appears in 1 contract
Sources: Registration Rights Agreement (Roth CH Acquisition I Co)
Shelf Registration. (a) On or prior to each Filing Date, the The Company shall prepare and file with the Commission will cause a Registration Statement covering the resale of 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 registration statement on Form S-3 (except if the Company is not then eligible ineligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate such other form in accordance herewith, subject available to the provisions of Section 2(e)Company to register for resale the Registrable Securities as a secondary offering) and shall contain (unless otherwise directed by at least 60% in interest relating to the resale of the Holders) substantially Registrable Securities by 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 Registrable Securityholders on a continuous basis pursuant to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective Rule 415 under the Securities Act (the “Registration Statement”), to be filed with the Commission as promptly as possible after following the filing thereofdate hereof, but and in any event no later than the applicable Effectiveness Date, and shall use its commercial best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until ten (10) days from the date that the Registrable Securities of the Holder covered by such Registration Statement (i) have been soldhereof, thereunder or subject to extension pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders Section 3.1 hereof (the “Effectiveness PeriodFiling Deadline”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a)this Agreement, if in the event 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 (i) inform each of the Holders Registrable Securityholders thereof and use its commercially reasonable efforts to file amendments to the Initial initial Registration Statement as required by the CommissionCommission and/or (ii) withdraw the initial Registration Statement and file a new Registration Statement, in either case covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to the Company to register for resale the Registrable Securities as a secondary offering, subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendmentamendment or new Registration Statement, the Company shall be obligated to use diligent its commercially 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, Securities Act Rules’ 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 initial Registration Statement in accordance with or files a new Registration Statement, as the foregoingcase may be, under clauses (i) or (ii) above, the Company will use its best 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 the Company to register for resale those Registrable Securities that were not registered for resale on the Initial initial Registration Statement, as amended.
(d) If: (i) , or the Initial new Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Statement. No Registrable Securityholder shall be named as an “underwriter” in any Registration Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the Securityholder’s prior written consent of such Holderconsent.
Appears in 1 contract
Sources: Registration Rights Agreement (HUGHES Telematics, Inc.)
Shelf 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 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 US-DOCS\93729153.6 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 6085% in interest of the HoldersHolders or if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling StockholderShareholders” section attached hereto as Annex BB (which sections may be modified if required to respond to comments, if any, provided by the Commission; provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 reasonably practicable after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) Eastern Time on a Trading Day. The Company shall promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Eastern 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) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 US-DOCS\93729153.6 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of the Series Underlying unregistered Shares and the holders of the Debenture Shares, as applicableheld 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 reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 US-DOCS\93729153.6 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 twenty-five ten (2510) calendar days Trading 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 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, or (v) after the effective date of a Registration Statement, such Registration Statement ceases for any reason (other than due to the inaccuracy of any information provided by the Holders) 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 twenty-five ten (2510) consecutive calendar days or more than an aggregate of fifty twenty (5020) 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 twenty-five ten (2510) calendar day Trading Day period is exceeded, and for purpose of clause (v) the date on which such twenty-five ten (2510) or fifty twenty (5020) 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 with respect to any Securities then held by, or issuable to, such Holder that are Registrable Securities. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 10% 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 1215% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in US-DOCS\93729153.6 effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Apricus Biosciences, Inc.)
Shelf Registration. (a) On or prior to each Filing Date, the Company shall prepare and file with the Commission SEC a Registration Statement covering the resale of all or such maximum portion of the Registrable Securities as permitted by SEC Guidance (provided that, the Company shall use diligent efforts to advocate with the SEC for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09) 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 under the provisions of Section 2(e)) Securities Act and shall contain (unless otherwise directed by at least 60% a majority 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) hereunder to be declared effective under the Securities Act as promptly as possible reasonably practicable after the filing thereof, but in any event no later than prior to the applicable Effectiveness Date, and shall use its commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) (A) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and (B) (I) may be sold 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 144 or (II) the Company pursuant to a written opinion letter to such effect, addressed and acceptable to is in compliance with the Transfer Agent and the affected Holders current public information requirement under Rule 144 (the “Effectiveness Period”). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission SEC as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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)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 used diligent efforts to advocate with the Commission SEC 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 first be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce by Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Warrant Shares may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Warrant Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(db) 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, the Company shall be deemed to have not satisfied this clause (i))Date, or (ii) the Company fails to file with the Commission a request for acceleration of a Initial Registration Statement in accordance with Rule 461 promulgated is not declared effective by the Commission pursuant to the Securities Act, within earlier of (A) five (5) Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the Commission SEC that such Registration Statement will not be “reviewed” or will not be subject to further reviewreview or (B) ninety (90) days after the Closing Date, 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 twenty-five (25) calendar 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 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, or (v) after the effective date of a Registration Statement, such Registration Statement ceases available 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, resales for more than twenty-five twenty (2520) consecutive calendar days or more than an aggregate of fifty forty-five (5045) calendar days in any twelve (which need not be consecutive calendar days12) during any 12-month period (any such failure or breach being referred to as an “Event”, and for purposes of clauses clause (i) and (iv), the date on which such Event occurs, and for purpose of clause (iiii)(A) the date on which such five (5) Trading Day period is exceeded, and for purpose of clause (iiiii)(B) the date on which such twenty-five ninety (2590) calendar day period is exceeded, and for purpose of clause (v) iii), the date on which such twentytwenty (20) or forty-five (2545) or fifty (50) calendar day periodperiod is exceeded, 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 1% of 1.0% multiplied by the aggregate Subscription Amount purchase price paid by such Holder pursuant to the Purchase Agreement for any unregistered Registrable Securities then held by such Holder; provided, however, that the Company shall not be required to pay partial liquidated damages to such Holder under this Section 2(b) in an aggregate amount in excess of 3% of the aggregate Purchase Price paid by such Holder pursuant to the Purchase Agreement. The parties agree that the Company shall not be liable for liquidated damages under this Agreement with respect to any unexercised Warrants or Warrant Shares. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 1218% 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. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf 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 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 60% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable 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 commercial best commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders 144 (the “Effectiveness Period”). The Company shall telephonically request in writing effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on a Trading Day. The Company shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five (25) calendar 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 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, 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 twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 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 twenty-five (25) calendar day period is exceeded, and for purpose of clause (v) the date on which such twenty-five (25) or fifty (50) 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.Trading
Appears in 1 contract
Sources: Registration Rights Agreement (Delcath Systems, Inc.)
Shelf 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 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 6085% 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 Holder’s express prior written consent. Subject to the terms of this Agreement, the Company shall use its commercial reasonable 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 commercial reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act as to a Holder until the date that the all Registrable Securities of the Holder covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders and the Transfer Agent has issued certificates for such Registrable Securities to the holder thereof, or as such holder may direct, without any restrictive legend (the “Effectiveness Period”). 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 promptly immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) 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 two (2) Trading Days of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”)Securities;
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, Warrant Shares issuable upon exercise of the Series H Underlying Shares and the Debenture Shares A Warrants (applied, in the case that some Underlying Shares, Warrant Shares issuable upon exercise of the Series H Underlying Shares and the Debenture Shares A Warrants may be registered, for to the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares Holders on a pro rata basis based on the total number of unregistered Underlying Shares, Warrant Shares issuable upon exercise of the Series H underlying Shares and the Debenture Shares A Warrants held by such Holders); and
c. Third, the holders Company shall reduce Registrable Securities represented by Shares and Warrant Shares issuable upon exercise of the Series Underlying B Warrants (applied, in the case that some Shares and the holders Warrant Shares issuable upon exercise of the Debenture SharesSeries B Warrants may be registered, as applicableto the Holders on a pro rata basis based on the total number of unregistered Shares and Warrant Shares issuable upon exercise of the Series B Warrants 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 reasonable 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 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.
(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, the Company shall be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to the 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 twenty-five ten (2510) calendar days Trading 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 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, 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 twenty-five fifteen (2515) consecutive calendar days or more than an aggregate of fifty twenty five (5025) 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 twenty-five ten (2510) calendar day Trading Day period is exceeded, and for purpose of clause (v) the date on which such twenty-fifteen (15) or twenty five (25) or fifty (50) 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 1.01.5% 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 12% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Shelf Registration. (a) On or prior to each the Filing Date, the Company shall prepare and file with the Commission a "Shelf" Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement such Filing Date for an offering to be made on a continuous basis pursuant to Rule 415. Each The Registration Statement filed hereunder shall be on Form S-3 (except if unless 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 60% in interest of the HoldersHolders and except to the extent the Company determines that modifications thereto are required under applicable law) 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 Holder’s express prior written consent. A. Subject to the terms of this Agreement, the Company shall use its commercial best commercially reasonable efforts to cause a the 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 prior to the applicable Effectiveness Date, and shall use its commercial best commercially reasonable efforts to keep such the Registration Statement continuously effective under the Securities Act as to a Holder until the date which is two years after the date that the Registration Statement is declared effective by the Commission or such earlier date when all Registrable Securities of the Holder covered by such the Registration Statement (i) have been sold, thereunder sold or pursuant to Rule 144, or (ii) may be sold without 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, 144(k) as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent Company's transfer agent and the affected Holders (the “"Effectiveness Period”"). 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 promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement no later than one (1) 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) no later than one (1) Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding the registration obligations set forth in Section 2(a), 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(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 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.[RESERVED]
(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:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities and, if included on a Registration Statement, the shares of Common Stock underlying the Company’s Series H Convertible Preferred Stock (the “Series H Underlying Shares”) and the shares of Common Stock underlying the Company’s 12% Senior Secured Subordinated Convertible Debenture due December 31, 2020 and issued prior to the date hereof (the “Debenture Shares”);
b. Second, the Company shall reduce Registrable Securities represented by Underlying Shares, the Series H Underlying Shares and the Debenture Shares (applied, in the case that some Underlying Shares, the Series H Underlying Shares and the Debenture Shares may be registered, for the Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares on a pro rata basis based on the total number of unregistered Underlying Shares, Series H underlying Shares and the Debenture Shares held by such Holders, the holders of the Series Underlying Shares and the holders of the Debenture Shares, as applicable). 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 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.
(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) hereinDate, the Company shall not be deemed to have not satisfied this clause (i)), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated by the Commission pursuant to under the 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 the Registration Statement will not be “"reviewed” ," or will not be subject to further review, or (iii) prior to the effective date of a Registration Statementits Effectiveness Date, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such the Registration Statement within twenty-five (25) calendar days fifteen Trading Days after the receipt of comments by or notice from the Commission that such amendment is required in order for such the Registration Statement to be declared effective, or (iv) a the Registration Statement registering for resale all of the Registrable Securities filed or required to be filed hereunder is not declared effective by the Commission by the its Effectiveness Date of the Initial Registration StatementDate, or (v) after the effective date of a Registration StatementEffectiveness Date, such the Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statementfor which it is required to be effective, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, Securities for more than twenty-five (25) consecutive calendar days or more than an aggregate of fifty (50) 30 calendar days during any 12 month period (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 clause (i) and or (iv), ) the date on which such Event occurs, and or for purpose purposes of clause (ii) the date on which such five (5) Trading Day period is exceeded, and or for purpose purposes of clause (iii) the date which such twenty-five (25) calendar day 15 Trading Day period is exceeded, and or for purpose purposes of clause (v) the date on which such twenty-five (25) or fifty (50) 30 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 every monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) thereof 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 2.0% per month 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 3 days after the date payable, the Company will pay interest thereon at a rate of 1218% 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 pro-rata basis for any portion of a month prior to the cure of an Event. Notwithstanding anything to the contrary in this Agreement or the Purchase Agreement, the maximum amount of liquidated damages that a Holder may receive shall not exceed 6% of the Subscription Amount of such Holder.
(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 reasonably practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
(f) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Dot Hill Systems Corp)