Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. (ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Merus N.V.), Registration Rights Agreement (Merus N.V.)
Effectiveness. The provisions of this Article II shall be effective only after the Nasdaq has approved the Borrower's additional listing application covering the Conversion Shares (ias that term is defined herein) The Company shall use reasonable best efforts to have and determined that the Registration Statements declared effective as soon as practicable. The Company shall notify Facility should not be integrated with the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight Borrower's private placement (48the "SEPTEMBER FINANCING") hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access effected pursuant to a copy Securities Purchase Agreement dated as of any related Prospectus to September 30, 2003 by and among the Borrower and certain purchasers thereto (the "COMPLIANCE EVENT"). In the event that Nasdaq determines that this Note would be used in connection integrated with the sale September Financing (the "NON-COMPLIANCE EVENT"), the provisions of this Article II shall never become effective.
(a) Payment of Monthly Amount in Cash or other disposition of the securities covered therebyCommon Stock. Subject to Section 2(d)the terms hereof, if the Borrower shall have the sole option to determine whether to satisfy payment of the Monthly Amount on each date a payment under the Note is due and payable (Aa "REPAYMENT DATE") a Registration Statement covering either in cash or in shares of Common Stock (as defined in the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”Purchase Agreement), or (B) after a Registration Statement has been declared effective combination of both. Each month by the SECtenth (10th) day of such month, sales cannot be made pursuant the Borrower shall deliver to such Registration Statement for any reason (including without limitation by reason the Holder a written irrevocable notice in the form of a stop orderExhibit B attached hereto electing to pay the Monthly Amount payable on the next Repayment Date in either cash or Common Stock, or the Company’s failure to update such Registration Statement)a combination of both (each, but excluding any Allowed Delay a "REPAYMENT ELECTION NOTICE") (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (notice is required to be given being hereinafter referred to as the “Blackout Period”"NOTICE DATE"). For each Investor that elects If a Repayment Election Notice is not delivered to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy the Holder by the applicable Notice Date for such events and shall be in addition to any other rights Repayment Date, then the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph Monthly Amount due on such Repayment Date shall be paid no later than in cash. Any portion of the Monthly Amount paid in cash on a Repayment Date, shall be paid to the Holder an amount equal to (x) 103% of the principal portion of the Monthly Amount plus (y) any accrued and unpaid interest in satisfaction of such obligation. If the Borrower repays all or a portion of the Monthly Amount in shares of Common Stock, the number of such shares to be issued for such Repayment Date shall be the number determined by dividing (x) the portion of the Monthly Amount to be paid in shares of Common Stock, by (y) the Fixed Conversion Price. For purposes hereof, the "FIXED CONVERSION PRICE" means $1.33 (which has been determined on the date of this Note as an amount equal to 103% of the average closing price for the five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything trading days immediately prior to the contrary contained herein, the Company may, upon written notice to any holder date of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(iiNote), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Bam Entertainment Inc), Secured Convertible Term Note (Bam Entertainment Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 75th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), Filing Deadline or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Purchaser to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor Purchaser for such Registrable Securities then held by such Investor for each the first 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective and 1.5% of the aggregate amount invested by such Purchaser for each 30-day period thereafter or pro rata for any portion thereof for which such Registration Statement should have been effective (the “Blackout Period”); provided, that the maximum payments to the Purchasers pursuant to this Section 2(c) shall not exceed 10.0% of the aggregate amount invested by such Purchaser. For each Investor If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven (7) days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser maximum amount that elects is permitted to receive be paid by applicable law) to the Purchasers, accruing daily from the date such partial liquidated damagesdamages are due until such amounts, plus all such interest thereon, are paid in full. Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Purchaser in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of a Purchaser) disclose to holders whose Registrable Securities are included such Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (True Drinks Holdings, Inc.), Registration Rights Agreement (True Drinks Holdings, Inc.)
Effectiveness. (a) This Agreement shall become effective on the date (the "Restatement Effective Date") on which (i) The Company shall use reasonable best efforts to have each Credit Party, each Agent and each of the Registration Statements declared effective as soon as practicable. The Company shall notify Banks (including each Continuing Bank and each New Bank) and the Investors by facsimile or e-mail as promptly as practicableRequired Banks (under, and as determined in, the Existing Credit Agreement and determined immediately before the occurrence of the Restatement Effective Date) shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent at its Notice Office or, in any eventthe case of the Banks, within forty-eight shall have given to the Administrative Agent telephonic (48confirmed in writing), written, telecopy or telex notice (actually received) hours, after at such office that the same has been signed and mailed to it and (xii) the SEC notified conditions set forth in Article 4A hereof are satisfied.
(b) On the Company that it has no further comments Restatement Effective Date, each New Bank and Continuing Bank shall have delivered to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide Administrative Agent for the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition account of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in Borrower an amount equal to 1% (i) in the case of each New Bank, the aggregate amount paid pursuant Revolving Loans to the Purchase Agreement be made by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following New Bank on the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events Restatement Effective Date and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) in the case of each Continuing Bank, the amount by which the principal amount of Revolving Loans to be made and/or converted by such Continuing Bank on the Restatement Effective Date exceeds the amount of the Existing Revolving Loans of such Continuing Bank outstanding on the Restatement Effective Date. Notwithstanding anything to the contrary contained hereinin this Section 11.10(b), in satisfying the Company mayforegoing condition, upon written notice unless the Administrative Agent shall have been notified by any Bank prior to any holder the occurrence of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus Restatement Effective Date that forms a part of a Registration Statement, if the Company (X) determines that it would be required such Bank does not intend to make disclosure of material information in available to the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that Administrative Agent such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact Bank's Revolving Loans required to be stated therein or necessary to make made by it on such date, then the statements thereinAdministrative Agent may, in the case of the Prospectus in light of the circumstances under which they were madereliance on such assumption, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant make available to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) Borrower the corresponding amounts in any 360-day period (any accordance with the provisions of Section 1.04 of this Agreement, and the making available by the Administrative Agent of such suspension contemplated by amounts shall satisfy the condition contained in this Section 2(c)(ii11.10(b), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Credit Agreement (Northwest Airlines Corp), Credit Agreement (Northwest Airlines Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the any Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (yA) any Registration Statement is declared effectiveeffective and (B) the filing of any related Prospectus under Rule 424(b), and at which time the Company shall simultaneously also provide the Investors with access to a copy copies of any such related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyProspectus. Subject to Section 2(d), if If (AA)(w) a Registration Statement covering the resale of the Shares and the Initial Warrant Shares and any and all other securities issued or issuable with respect to or in exchange for such Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (the 120th day after the Closing Date (or the 150th day if the Registration Statement is reviewed by the SEC), (x) a Registration Statement covering the resale of the Conversion Shares and the Additional Warrant Shares and any and all other securities issued or issuable with respect to or in exchange for such Registrable Securities is not declared effective by the SEC reviews prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Automatic Conversion Date (the 120th day after the Automatic Conversion Date if the Registration Statement is reviewed by the SEC) or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (the “Effectiveness Deadline”120th day after such date if the Registration Statement is reviewed by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 1(i) 1.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such the Registrable Securities then held by included in the applicable Registration Statement that has not been declared effective (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Investor Additional Shares) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”)") and (ii) 1.0% of the aggregate amount invested by such Investor for the Registrable Securities included in the applicable Registration Statement that is not available for resales (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Additional Shares) for each 30-day period or pro rata for any portion thereof that sales could not be made thereunder as provided in clause (B) above. For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Purchase Agreement (Zila Inc), Registration Rights Agreement (Zila Inc)
Effectiveness. (i) The Company shall use its reasonable best efforts to have the Initial Registration Statements Statement and any amendment declared effective as soon as practicableby the SEC at the earliest possible date but no later than the earlier of (a) the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review; provided, that if the deadline for effectiveness of the Initial Registration Statement falls after February 14, 2025, it shall be automatically extended until the second business day following the date on which the Company files its Definitive Proxy Statement or Annual Report on Form 10-K that includes the disclosures required by Part III of Form 10-K, which shall be filed no later than April 30, 2025 (the “Effectiveness Deadline”). The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hoursone Business Day, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective or is supplemented and shall simultaneously provide the Investors Investor with access to a copy copies of any related Prospectus prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject The Company shall use reasonable best efforts to Section 2(d), if (A) a keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investors of all of the Registrable Securities is not declared effective by covered thereby at all times until the SEC prior earliest to occur of the 120th day after the Closing Date following events: (or the 150th day if the SEC reviews such Registration Statementi) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a postInvestors shall have resold all the Registrable Securities covered thereby; (ii) the date on which the Registrable Securities may be resold by the Investors without registration and without regard to any volume or manner-effective amendment to incorporate of-sale limitations by reason of Rule 144, without the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, requirement for the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages be in compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of similar effect; and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following (iii) five (5) years after the date by which such Registration Statement should have been effective of this Agreement (the “Blackout Registration Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events The Initial Registration Statement (including any amendments or supplements thereto and shall be in addition to any other rights the Investors may have hereunder or under applicable law and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on contain any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebymisleading.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aligos Therapeutics, Inc.), Registration Rights Agreement (Aligos Therapeutics, Inc.)
Effectiveness. (i) The Corporation shall use its best efforts to file each Registration Statement within 45 calendar days after the request by the Holders hereunder if the Registration Statement relates to a public offering of shares of Common Stock, and 60 calendar days for any other Registration Statement, and to have each Registration Statement declared effective prior to the 60th calendar day following the date that such Registration Statement was initially filed with the SEC (the “Filing Date”) (or, in the event the SEC reviews and has written comments to the Registration Statement, the 90th calendar day following the Filing Date) (the “Effectiveness Deadline”); provided, however, that if the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as to such Registration Statement shall be the 3rd Business Day following the date on which the Corporation is so notified if such date precedes the dates otherwise required above, and the Corporation shall use its best efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of the following (the “Effectiveness Period”): (A) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (B) there otherwise ceases to be Registrable Securities, or (C) in the case of a Shelf Registration Statement, three years from the date of filing thereof; provided that if, at the expiration of such three-year period, any Registrable Securities remain outstanding, the Company shall use reasonable its best efforts to have file on the date of expiration of such three-year period a new Shelf Registration Statements declared effective as soon as practicableStatement. The Company Corporation shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) 48 hours, after (xX) the SEC notified the Company that it has no further Corporation receives written comments to a Registration Statement from the SEC, (Y) the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, and (yZ) any a Registration Statement is declared effective. At such time as the Corporation notifies the Purchasers that a Registration Statement is declared effective as provided in the immediately preceding sentence, and the Corporation shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend For not more than 40 consecutive calendar days or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 total of not more than 75 calendar days (which need not be consecutiveconsecutive days) in any 36012-day period (month period, the Corporation may delay the disclosure of material non-public information concerning the Corporation, by deferring the filing of any such suspension Registration Statement as otherwise required under this Section 2, or suspending the use of any Prospectus included in any registration contemplated by this Section 2(c)(ii)Section, if such disclosure at the time is not, in the good faith opinion of the Corporation, in the best interests of the Corporation (an “Allowed Allowed’ Delay”). Upon disclosure of such information or ; provided, that the termination Corporation shall promptly (a) notify the Purchasers in writing of the condition described aboveexistence of (but in no event, without the Company prior written consent of a Purchaser, shall provide prompt notice the Corporation disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration StatementStatement until the end of the Allowed Delay, and shall (c) use its best efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Square 1 Financial Inc), Registration Rights Agreement (Square 1 Financial Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date (or the 150th day if the SEC reviews such the Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot (subject to any Allowed Delay) be made continuously pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions (each such event, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout PeriodDefault”). For each Investor In the event that elects to receive liquidated damagesa Default occurs then, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law law, on the first day of the occurrence of the Default, and on each monthly anniversary of each such date (if the applicable Default shall not affect have been cured by such date) until the right of applicable Default is cured, the Company shall pay to each Investors to seek injunctive relief. The amounts payable an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 1.0% of the aggregate Purchase Price paid by such Investor pursuant to the Purchase Agreement for any Registrable Securities held by such Investor on the date of the Default and each such monthly anniversary thereof. 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 (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the Effectiveness Period), and in no event shall the aggregate amount of Liquidated Damages payable to a Investor exceed, in the aggregate, fifteen percent (15%) of the aggregate purchase price paid by such Investor pursuant to the Purchase Agreement and (2) in no event shall the Company be liable in any 30-day period for Liquidated Damages under this Agreement in excess of 1.0% of the aggregate Purchase Price paid by the Investors pursuant to the Purchase Agreement. If the Company fails to pay any Liquidated Damages pursuant to this paragraph shall be paid no later than Section 2(b) in full within five (5) Business Days after each such 30-day period following the commencement of date payable, the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue Company will pay interest thereon at the a rate of 11.5% per month on any (or such liquidated damages payments lesser maximum amount that shall not is permitted to be paid by applicable law) to the Blackout Payment Date Investor, accruing daily from the date such Liquidated Damages are due until such amount is amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of a Default, except in the case of the first occurrence of the Default.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aldeyra Therapeutics, Inc.), Registration Rights Agreement (Aldeyra Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors and the Placement Agent by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously as soon as reasonably practicable provide the Investors and the Placement Agent with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(y) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day within ninety (90) days after the Closing Date (or the 150th day one hundred twenty (120) days if the SEC reviews such Registration StatementStatement is reviewed by the SEC) (the “Effectiveness Deadline”), or (z) a Registration Statement covering Additional Shares is not declared effective by the SEC within ninety (90) days (one hundred twenty (120) days if such Registration Statement is reviewed by the SEC) following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor The parties agree that elects to receive the Company will not be liable for any liquidated damages, such damages in respect of the Warrants or the Placement Agent Warrants. Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefevents. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereincontrary, for not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statementmay delay, suspend the use of, or withdraw any Registration Statement or qualification of Registrable Securities if the Company in good faith determines that any such Registration Statement, including or the use thereof, would materially and adversely affect any Prospectus that forms a part material corporate event or would otherwise require disclosure of a Registration Statementnonpublic information which the Company determines, in its reasonable judgment, is not in the best interests of the Company at such time, or, in the Company’s discretion, if the Company (X) determines that it would be required to make disclosure of material information an event described in the Registration Statement that the Company Section 3(h) has a bona fide business purpose for preserving as confidential, occurred (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors and the Placement Agent in writing of the existence of (but in no event, without the prior written consent of an Investor or the Placement Agent, shall the Company disclose to holders whose Registrable Securities are included such Investor or the Placement Agent any of the facts or circumstances regarding) the event giving rise to an Allowed Delay, provided that the Company shall not be required to disclose material nonpublic information to an Investor or the Placement Agent, (b) advise the Investors and the Placement Agent in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Purchase Agreement (Bakers Footwear Group Inc), Registration Rights Agreement (Bakers Footwear Group Inc)
Effectiveness. (i) The Company shall use reasonable best efforts to have the any Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (yA) any Registration Statement is declared effectiveeffective and (B) the filing of any related Prospectus under Rule 424(b), and at which time the Company shall simultaneously also provide the Investors with access to a copy copies of any such related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyProspectus. Subject to Section 2(d), if If (AA)(w) a Registration Statement covering the resale of the Conversion Shares and the Warrant Shares and any and all other securities issued or issuable with respect to or in exchange for such Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Proposal Date (the 120th day after the Closing Proposal Date (or the 150th day if the Registration Statement is reviewed by the SEC) or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (the “Effectiveness Deadline”120th day after such date if the Registration Statement is reviewed by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 1(i) 1.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such the Registrable Securities then held by included in the applicable Registration Statement that has not been declared effective (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Investor Additional Shares) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”)") and (ii) 1.0% of the aggregate amount invested by such Investor for the Registrable Securities included in the applicable Registration Statement that is not available for resales (or, in the case of a Registration Statement relating to Additional Shares, the securities giving rise to the issuance of such Additional Shares) for each 30-day period or pro rata for any portion thereof that sales could not be made thereunder as provided in clause (B) above. For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Zila Inc), Purchase Agreement (Zila Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within three (3) months following the Closing Date, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within three (3) months following the demand of an Investor relating to the 120th day after Additional Registrable Securities covered thereby, or with respect to either a Registration Statement which is subject to full review (other than an exclusively "plain English review," for which an additional fifteen (15) days shall be given) by the SEC staff, within four (4) months following the Closing Date or demand, as the case may be (or the 150th day if the SEC reviews such each, a "Registration Statement) (the “Effectiveness Deadline”Date"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) orthe Common Stock generally or the Registrable Securities specifically are not listed or included for quotation on the Nasdaq National Market System, if the Registration Statement is on Form F-1Nasdaq Small Cap Market, for a period of twenty (20) days following the date on which New York Stock Exchange or the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)American Stock Exchange, then, at the election of each Investor, then the Company will make pro pro-rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penaltyInvestor, in an amount equal to 12% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor on the Closing Date to the Company for such Registrable Securities then shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"). For each Investor , provided, however, that elects in the case of the events described in (A) or (B) above with respect only to receive liquidated damagesthe Additional Registrable Securities, such penalty shall equal 2% of the aggregate market value of such Additional Registrable Securities for the duration of the Blackout Period. Each such payment shall be due and payable within five (5) days of the end of each month (or ending portion thereof) of the Blackout Period. In the event the Company fails to make a payment required hereunder within thirty (30) days of its due date, the rate of such penalty shall be increased to 3% for the remainder of the Blackout Period. Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ ' exclusive monetary remedy for such events and events. The Blackout Period shall be in addition to any other rights terminate upon (x) the Investors may have hereunder or under applicable law and shall not affect the right effectiveness of the Investors to seek injunctive reliefapplicable Registration Statement in the case of (A) and (B) above; (y) listing or inclusion of the Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange in the case of (C) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Investors, in lawful money of the United States or in shares of Common Stock at the Market Price (as defined in the Purchase Agreement), and amounts payable shall be paid no later than five (5) Business Days after monthly on the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Amounts payable hereunder shall be made to each electing cease when an Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullno longer holds Warrants or Registrable Securities, or Additional Registrable Securities, as applicable.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than ten (10) consecutive trading days or for a total of not more than twenty (20) trading days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination The duration of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included Restricted Period provided for in the Registration Statement, Purchase Agreement will be extended by the number of days of any and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyall Allowed Delays.
Appears in 2 contracts
Sources: Purchase Agreement (Insci Statements Com Corp), Registration Rights Agreement (Insci Statements Com Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the each Registration Statements Statement declared effective as soon as practicablepracticable after the filing thereof. The Company shall respond promptly to any and all comments made by the staff of the SEC on each Registration Statement, and shall submit to the SEC, within two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) Business Days after the submission of such requests. The Company shall notify the Investors Purchasers that purchased the Registrable Securities being registered by such Registration Statement by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any such Registration Statement is declared effective, effective and shall simultaneously provide the Investors such Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject .
(ii) If, with respect to Section 2(d), if (A) a any Registration Statement covering the First Closing Registrable Securities: (A) such Registration Statement covering the First Closing Registrable Securities is not filed with the SEC on or prior to the First Closing Filing Deadline (if the Company files a Registration Statement without affording PDL BioPharma, Inc. the opportunity to review and comment on the same as required by Section 3(c) herein, the Company shall be deemed to have not satisfied this clause (A)), (B) the Company fails to file with the SEC a request for acceleration of the effectiveness of such Registration Statement in accordance with Rule 461 promulgated by the SEC pursuant to the Securities Act, within two (2) Business Days after the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be “reviewed” or will not be subject to further review, (C) prior to the effective date of such Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the SEC that such amendment is required in order for such Registration Statement to be declared effective, (D) such Registration Statement covering the First Closing Registrable Securities is not declared effective by the SEC prior to the 120th 75th calendar day after following the First Closing Date (or or, in the 150th day if the SEC reviews such Registration Statement) (the event of a “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective review” by the SEC, sales cannot be made pursuant the 120th calendar day following the First Closing Date), (E) after the effective date of such Registration Statement, the Registration Statement ceases for any reason to remain continuously effective as to all First Closing Registrable Securities included in such Registration Statement for any reason (including without limitation by reason of a stop orderduring the applicable Effectiveness Period, or PDL BioPharma, Inc. are otherwise not permitted to utilize the Company’s Prospectus therein during the applicable Effectiveness Period to resell such First Closing Registrable Securities, for more than thirty (30) consecutive trading days or more than an aggregate of sixty (60) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach being referred to update such Registration Statementas a “First Closing Event”, and for purposes of clauses (A) and (D), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which such First Closing Event occurs, and for purpose of clause (B) the Company files a post-effective amendment date on which such two (2) Business Day period is exceeded, and for purpose of clause (C) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (E) the date on which such thirty (30) trading day or sixty (60) calendar day period, as applicable, is exceeded being referred to incorporate the Company’s Annual Report on Form 20-F (as a “Maintenance FailureFirst Closing Event Date”), then, at the election in addition to any other rights that PDL BioPharma, Inc. may have hereunder or under applicable law, on each such First Closing Event Date and on each monthly anniversary of each Investorsuch First Closing Event Date (if the applicable First Closing Event shall not have been cured by such date) until the applicable First Closing Event is cured, the Company will make pro rata payments shall pay to each electing Investor then holding Registrable SecuritiesPDL BioPharma, Inc. an amount in cash, as partial liquidated damages and not as a penalty, in an amount equal to 12.0% of the aggregate purchase price paid by PDL BioPharma, Inc. for the First Closing Registrable Securities issued in the First Closing (pro rated for partial months). Notwithstanding anything to the contrary herein or in the Purchase Agreement, in no event shall the aggregate amount paid of such partial liquidated damages (excluding interest) payable to PDL BioPharma, Inc. pursuant to this Section exceed, in the Purchase Agreement aggregate, 8.0% of the aggregate purchase price paid by such Investor PDL BioPharma, Inc. for such the First Closing Registrable Securities then held by such Investor for each 30-day period or pro rata for issued in the First Closing. If the Company fails to pay any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid no later than five Section in full within three (53) Business Days after each such 30-day period following the commencement of date payable, the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue Company will pay interest thereon at the a rate of 118% per month on any annum (or such liquidated damages payments lesser maximum amount that shall not is permitted to be paid by applicable law) to PDL BioPharma, Inc., accruing daily from the Blackout Payment Date date such partial liquidated damages are due until such amount is 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 a First Closing Event.
(iiiii) Notwithstanding anything If, with respect to any Registration Statement covering the Second Closing Registrable Securities: (A) such Registration Statement covering the Second Closing Registrable Securities is not filed with the SEC on or prior to the contrary contained Second Closing Filing Deadline (if the Company files a Registration Statement without affording the Purchasers the opportunity to review and comment on the same as required by Section 3(c) herein, the Company mayshall be deemed to have not satisfied this clause (A)), upon written (B) the Company fails to file with the SEC a request for acceleration of the effectiveness of such Registration Statement in accordance with Rule 461 promulgated by the SEC pursuant to the Securities Act, within two (2) Business Days after the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be “reviewed” or will not be subject to further review, (C) prior to the effective date of such Registration Statement, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within ten (10) calendar days after the receipt of comments by or notice from the SEC that such amendment is required in order for such Registration Statement to be declared effective, (D) such Registration Statement covering the Second Closing Registrable Securities is not declared effective by the SEC prior to the 150th calendar day following the Second Closing Date (or, in the event of a “review” by the SEC, the 240th calendar day following the First Closing Date), (E) after the effective date of such Registration Statement, the Registration Statement ceases for any holder of reason to remain continuously effective as to all Second Closing Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement during the applicable Effectiveness Period, or Prospectus shall the Purchasers are otherwise not include an untrue statement of a material fact or omit permitted to state a material fact required to be stated therein or necessary to make the statements therein, in the case of utilize the Prospectus in light therein during the applicable Effectiveness Period to resell such Second Closing Registrable Securities, for more than thirty (30) consecutive trading days or more than an aggregate of the circumstances under which they were made, not misleading or sixty (Z60) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutiveconsecutive calendar days) in during any 36012-day month period (any such suspension contemplated by this Section 2(c)(iifailure or breach being referred to as a “Second Closing Event”, and for purposes of clauses (A) and (D), an the date on which such Second Closing Event occurs, and for purpose of clause (B) the date on which such two (2) Business Day period is exceeded, and for purpose of clause (C) the date which such ten (10) calendar day period is exceeded, and for purpose of clause (E) the date on which such thirty (30) trading day or sixty (60) calendar day period, as applicable, is exceeded being referred to as a “Allowed DelaySecond Closing Event Date”). Upon disclosure , then, in addition to any other rights that the Purchasers may have hereunder or under applicable law, on each such Second Closing Event Date and on each monthly anniversary of each such information or Second Closing Event Date (if the termination of applicable Second Closing Event shall not have been cured by such date) until the condition described aboveapplicable Second Closing Event is cured, the Company shall provide prompt notice pay to holders whose the Purchasers an amount in cash, as partial liquidated damages and not as a penalty, equal to 1.0% of the aggregate purchase price paid by the Purchasers for the Second Closing Registrable Securities are included issued in the Registration StatementSecond Closing (pro rated for partial months). Notwithstanding anything to the contrary herein or in the Purchase Agreement, and in no event shall promptly terminate any suspension the aggregate amount of sales it has put into effect and shall take such other reasonable actions partial liquidated damages (excluding interest) payable to permit registered sales the Purchasers pursuant to this Section exceed, in the aggregate, 6.0% of the aggregate purchase price paid by the Purchasers for the Second Closing Registrable Securities as contemplated herebyissued in the Second Closing. If the Company fails to pay any partial liquidated damages pursuant to this Section in full within three (3) Business 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 Purchasers, 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 a Second Closing Event.
Appears in 2 contracts
Sources: Securities Purchase Agreement (PDL Biopharma, Inc.), Registration Rights Agreement (Evofem Biosciences, Inc.)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements Statement covering the resale of the Registrable Securities declared effective by the SEC as soon as practicablepracticable and prior to the earlier of (x) ten (10) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (y) the 90th day after the Registration Statement is filed. The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (xA) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide (B) the Investors with access to a copy filing of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(dunder Rule 424(b), if (A) at which time the Company shall also provide the Investor with a Registration Statement covering copy of such related Prospectus. After the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (the Company shall take all actions, including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if updating the Registration Statement is on Form F-1as necessary, for a period of twenty (20) days following so that the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid Securities may be sold pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable without restriction except as liquidated damages provided pursuant to this paragraph shall be paid no later than five subparagraph (5ii) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullbelow.
(ii) Notwithstanding anything to For not more than forty-five (45) consecutive days or for a total of not more than ninety (90) days in any twelve (12) month period without the contrary contained hereinapproval of the Investor, which approval shall not be unreasonably withheld, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, Company and thereby suspend its obligations under paragraphs (a) and (c) of this Section 2 (as well as the right of the Investor to use any Prospectus included in any Registration Statement contemplated by this Section) if the disclosure of which at such timematerial non-public information is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investor in writing of the existence of (but in no event, without the prior written consent of the Investor, shall the Company disclose to holders whose Registrable Securities are included the Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investor in writing to cease all sales under the Registration StatementStatement until the end of the Allowed Delay, and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Magellan Petroleum Corp /De/), Registration Rights Agreement (Magellan Petroleum Corp /De/)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicablepossible after filing. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after within 150 days following the Closing Date (or the 150th day if the Company fails to file an acceleration request within the fifth day following the date on which the Company is notified by the SEC reviews that such Registration Statement) Statement will not be reviewed or is no longer subject to further review and comments seeking to have the SEC declare the Registration Statement effective), (the “Effectiveness DeadlineRegistration Date”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (C) the Registrable Securities (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market System or the Nasdaq Small-Cap Market (each an “Approved Market”) or trading of the Common Stock is suspended or halted thereon, or (D) the Company fails, refuses or is otherwise unable to timely issue Underlying Shares upon conversion of the Preferred Shares or Warrant Shares upon exercise of the Warrants, in accordance with the terms of the Certificate and Warrants, unlegended certificates for the Underlying Shares or Warrant Shares as defined below) orrequired under the Agreements, if the Registration Statement is on Form F-1, for a period of twenty in each case within ten (2010) days following the date on which the Company files a post-effective amendment to incorporate the CompanyPurchaser’s Annual Report on Form 20-F written demand for issuance of such Underlying Shares or Warrant Shares or certificates (any such event under clause (A), (B), (C) or (D) constituting a “Maintenance FailureRegistration Default”), then, at then the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, Conversion Price shall be automatically reduced by 2% as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which occurrence of such Registration Statement should have been effective (Default. The aforementioned 2% reduction shall only be applied once regardless of the “Blackout Period”)reoccurrence of any Registration Default. For each Investor The Company shall promptly confirm in writing the adjusted Conversion Price, provided that elects any failure to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and do so shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later such automatic adjustment.
(ii) For not more than five (5) Business Days after each such 30-day period following the commencement consecutive trading days or for a total of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor not more than twenty (20) trading days in cash. Interest shall accrue at the rate of 1% per any consecutive twelve (12) month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinperiod, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers in writing of the existence of (but in no event, without the prior written consent of a Purchaser, shall the Company disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchasers in writing to cease all sales under the Registration Statement, and shall promptly terminate any suspension Statement until the end of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebythe Allowed Delay.
Appears in 2 contracts
Sources: Registration Rights Agreement (Harken Energy Corp), Registration Rights Agreement (Harken Energy Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to So long as the Purchasers are in compliance with their obligations set forth in Section 2(d)5 hereof, if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (the 120th day after the Closing Date (or in the 150th day if event that the SEC reviews such Registration Statement) (Statement has not been declared effective through no fault of the “Effectiveness Deadline”Company), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Purchaser to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid invested by such Purchaser pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers in writing of the existence of (but in no event, without the prior written consent of an Purchaser, shall the Company disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Zapata Corp), Registration Rights Agreement (Omega Protein Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date Filing Deadline or (or the 150th day if y) a Shelf Registration Statement is not declared effective by the SEC reviews such prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration StatementStatement will be made or that the SEC has no further comments on the Registration Statement or (ii) (the “Effectiveness 90th day after the Qualification Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid invested by such Investor pursuant to the Existing Agreement, the Borrowing Notice and/or the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company has a bona fide business purpose for preserving as confidentialCompany, in the best interests of the Company, (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading, or (ZC) obtain an expert consent which is required for the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure continued use of which at such time, any Prospectus included in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the any Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Fir Tree Inc.), Registration Rights Agreement (Chinacast Education Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective by the SEC as soon as practicablepracticable after filing. The Company shall notify MDB and the Investors by facsimile or e-mail as promptly as practicablepracticable after, and in any event, within forty-eight (48) hoursno later than 5:00 p.m. New York time on the Business Day following the date, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide MDB and the Investors by facsimile or e-mail with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day earlier of (i) seven (7) Business Days after the Closing Date (SEC shall have informed the Company that no review of the Registration Statement will be made or the 150th day if that the SEC reviews such has no further comments on the Registration StatementStatement or (ii) (the “Effectiveness Deadline”)February 12, 2018 or (B) after a Registration Statement has been declared effective by the SEC, SEC but sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of MDB or any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to MDB and each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% multiplied by (a) the gross purchase price paid for the Shares, in the case of the aggregate amount paid pursuant to Investors, or (b) the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor MDB Share Value, in the case of MDB, in each case, for each 30-day period or pro rata rata, for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such MDB’s and the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of MDB and the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph Section 2(c) shall be paid no later than by the Company to MDB and the Investors monthly within five (5) Business Days after of the last day of each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to MDB and each electing Investor in cash. Interest Such payments shall accrue at the rate of 1% per month on be in addition to, and not in lieu of, any such liquidated damages payments that shall not required to be paid made by the Blackout Payment Date until such amount is paid in fullCompany to MDB and the Investors pursuant to Section 2(a).
(ii) Notwithstanding anything herein to the contrary contained hereincontrary, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part the Company’s Board of a Registration Statement, if Directors determines in good faith that such suspension is necessary to (A) delay the Company (X) determines that it would be required to make disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company’s Board of Directors, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) an “Allowed Delay”); provided, that the Company has experienced shall promptly (a) notify MDB and each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of MDB and each Investor) disclose to MDB or is experiencing some other such Investor any material non-public eventinformation giving rise to an Allowed Delay, including a pending transaction involving (b) advise MDB and the Company, the disclosure of which at such time, Investors in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable. The Company shall be entitled to exercise its right under this Section 2(c)(ii) to suspend the availability of a Registration Statement and Prospectus for a period that exceeds 120 not to exceed 20 calendar days (which need not be consecutiveconsecutive days) in any 360six-day period month period.
(any such suspension contemplated iii) Notwithstanding anything herein to the contrary, in no event shall the liquidated damages paid or to be paid by the Company to MDB or an Investor pursuant to Sections 2(a) and 2(c) of this Section 2(c)(ii)Agreement exceed, in the aggregate, an “Allowed Delay”). Upon disclosure of such information or amount equal to 7.5% multiplied by (a) the termination gross purchase price paid for the Shares, in the case of the condition described aboveInvestors, or (b) the Company shall provide prompt notice to holders whose Registrable Securities are included MDB Share Value, in the Registration Statement, and shall promptly terminate any suspension case of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyMDB.
Appears in 2 contracts
Sources: Registration Rights Agreement (theMaven, Inc.), Registration Rights Agreement (theMaven, Inc.)
Effectiveness. Sections 6.1 through 6.8, Section 6.10, Section 6.11 and this Section 6.16 shall be effective upon the execution of this Agreement by the parties hereto. All other provisions of this Agreement shall become automatically effective, without further action of the parties, upon the later of the date (such date, the “Effectiveness Date”) (i) that is two business days prior to the date (the “Scheduled Date”) on which the FDIC is scheduled to be appointed receiver for the Failed Bank and will enter into the P&A Agreement with the Bank relating to the Bank’s purchase of certain assets and assumption of deposits (and certain other specified liabilities) of the Failed Bank and (ii) that the Company notifies the Purchasers of the Scheduled Date. The Company will provide notification to each Purchaser of (i) the Scheduled Date upon the notification to the Company by the FDIC that the Bank is the winning bidder for the Failed Bank and (ii) any changes to the Scheduled Date by the FDIC following the initial determination of the Scheduled Date by the FDIC. If (i) the FDIC notifies the Company that the Bank will not be permitted to enter a bid for the Failed Bank, (ii) the FDIC has notified the Company that the scheduled due date for bids with respect to the Failed Bank has been modified, changed or set to a date later than June 1, 2010, or such other date as the parties mutually agree, or that the FDIC intends not to schedule or re-schedule a bid date for the Failed Bank on or before June 1, 2010, or such other date as the parties mutually agree, (iii) the Bank fails to submit a bid for the Failed Bank by the deadline for such submission established by the FDIC, (iv) the FDIC has notified the Company that the Bank is not the winning bidder for the Failed Bank, (v) no bid by the Bank for the Failed Bank has been accepted by the FDIC by June 1, 2010 or (vi) if the Bank has been selected as the winning bidder for the Failed Bank, the P&A Closing has not occurred by June 30, 2010, then, in each case, this Agreement shall use reasonable best efforts to have the Registration Statements declared effective as soon as practicableterminate, other than Sections 6.1 through 6.8, Section 6.10, Section 6.11 and this Section 6.16, which shall survive such termination. The Company shall promptly notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy Purchaser upon receipt of any related Prospectus to be used notification described in connection with the sale or other disposition of two preceding sentences from the securities covered therebyFDIC. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant Prior to such Registration Statement for any reason (including without limitation by reason termination, neither party may revoke its acceptance of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullAgreement.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Oriental Financial Group Inc), Securities Purchase Agreement (Oriental Financial Group Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement, (ii) the 90th day after the Closing Date Shareholders Meeting or (or the 150th day if the SEC reviews such Registration Statementiii) (the “Effectiveness Deadline”)November 30, 2008, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor Investor’s Liquidated Damages Amount for each 30-30- day period (or pro rata for any portion thereof thereof) following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days, and for not more than an aggregate of forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time would be, in the Registration Statement that good faith opinion of the Company, materially detrimental to the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must to amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable best efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (New Leaf Ventures II, L.P.), Registration Rights Agreement (World Heart Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement(s) declared effective as soon as practicablepracticable (including filing with the SEC a request for acceleration of its effectiveness in accordance with Rule 461 within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the staff of the SEC that a Registration Statement will not be reviewed, or not be subject to further review). The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a the S-1 Registration Statement covering or the Registrable Securities S-3 Registration Statement is not declared effective by the SEC prior to the 120th day five (5) Business Days after the Closing Date (or the 150th day if staff of the SEC reviews shall have informed the Company (orally or in writing, whichever is earlier) that such Registration Statement) (Statement will not be reviewed by the “Effectiveness Deadline”)staff of the SEC or not be subject to further review, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay (Investor to sell the Registrable Securities covered thereby due to market conditions and except as defined excused pursuant to Section 2(c)(ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at The parties agree that the rate of 1% per month on any such liquidated damages payments provided for in this Section 2(c)(i) represent a reasonable estimate on the part of the parties, as of the date of this Agreement, of the amount of damages that shall not may be paid incurred by the Blackout Payment Date until Investors if the S-1 Registration Statement is not declared effective as hereinabove provided or if the S-3 Registration Statement is not declared effective by the applicable S-3 Filing Deadline. For purposes of the obligations of the Company under this Agreement, except in the case of any Investors who elect in writing not to have its Registrable Securities included in the Registration Statement, no Registration Statement shall be considered “effective” with respect to any Registrable Securities unless such amount Registration Statement lists the Investors of such Registrable Securities as “Selling Stockholders” and includes such other information as is paid in fullrequired to be disclosed with respect to such Investors to permit them to sell their Registrable Securities pursuant to such Registration Statement.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Prospectus included in any registration contemplated by this Section or by delaying any post-effective amendment to the Form S-1 Registration Statement, including any Prospectus that forms a part of a Statement (if the Form S-3 Registration StatementStatement has not yet become effective), if such disclosure at the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or time is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such timenot, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding)an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Purchase Agreement (Avalon Pharmaceuticals Inc), Registration Rights Agreement (Avalon Pharmaceuticals Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicablewithin one hundred twenty (120) days of the date hereof (one hundred eighty (180) days in the event the Commission shall provide any comments to the Registration Statement) (the “Effectiveness Deadline”). The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight two (482) hoursTrading Days, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effectiveeffective and, and if requested, shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC Commission prior to the 120th day earlier of (i) five (5) Trading Days after the Closing Date Commission shall have informed the Company that no review of the Registration Statement will be made or that the Commission has no further comments on the Registration Statement or (or ii) the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”)Deadline date, or (B) after a Registration Statement has been declared effective by the SECCommission, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s Companys failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 10.5% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such Registrable Securities then held by such Investor Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within ten (510) Business Days after days of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall expire upon the declaration of effectiveness by the Commission of the Registration Statement (if the Blackout Period is covered by clause (A) of this Section 2(c)(i)) or the date on which sales pursuant to the Registration Statement may resume (if the Blackout Period is covered by clause (B) of this Section 2(c)(i)). Such payments shall be made to each electing Investor Purchaser in cashcash no later than ten (10) days after the end of each 30-day period. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything else to the contrary contained herein, liquidated damages, if any, payable pursuant to this Section 2(c) shall cease to accrue after the date that is six (6) months after the Closing Date.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section 2 in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading, or (ZC) the Company has experienced or is experiencing some other material nonto file a post-public event, including a pending transaction involving the Company, the disclosure of which at effective amendment to such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days to comply with the undertakings required by Item 512(a) of Regulation S-K (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of a Purchaser) disclose to holders whose Registrable Securities are included such Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Aeolus Pharmaceuticals, Inc.), Registration Rights Agreement (Aeolus Pharmaceuticals, Inc.)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (x) ten (10) Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement and (y) the 90th day after the Closing Date (or the 150th 120th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 2010-F K (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. Notwithstanding the foregoing, the Company will not be liable for any liquidated damages under this Section 2(c)(i) with respect to any Warrant Shares prior to their issuance.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (XA) determines that it would be required to make disclosure of nonpublic material information in the Registration Statement that would otherwise not be required to be disclosed at that time that would be materially adverse to the Company has a bona fide business purpose for preserving as confidentialCompany, or (YB) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Companymisleading; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) 30 consecutive Trading Days or 60 total Trading Days in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entasis Therapeutics Holdings Inc.), Securities Purchase Agreement (Innoviva, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than sixty (60) consecutive days or for a total of not more than one hundred five (105) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company has a bona fide business purpose for preserving as confidentialCompany, in the best interests of the Company, (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or misleading, (ZC) permit the Company has experienced to conduct a sale of securities or other financing that is experiencing some other material non-public event, including not a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders sale of Registrable Securities be suspended from selling or (D) file a replacement Registration Statement covering the resale of Registrable Securities pursuant to in connection with the expiration or anticipated expiration of an effective Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under such Registration Statement until the Registration Statement, end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Summit Therapeutics PLC), Securities Purchase Agreement (Summit Therapeutics PLC)
Effectiveness. (i) The Company shall use reasonable best efforts to have the a Resale Registration Statements Statement declared effective as soon as practicable, but, in any event, no later than 120 days after the Warrant Closing Date. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Resale Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Resale Registration Statement covering all of the Registrable Securities is not declared effective by the SEC prior to the 120th earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Resale Registration Statement will be made or that the SEC has no further comments on the Resale Registration Statement or (ii) the 120 days after the Warrant Closing Date (or, if pursuant to Section 2(a) such Resale Registration Statement was timely filed later than the 60th day after the Warrant Closing Date (or because the 150th Company was not S-3 eligible prior to the Filing Deadline, the 60th day if after the SEC reviews date that such Registration StatementStatement was filed) (the “Effectiveness Deadline”), or (B) after a Resale Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Resale Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Resale Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor Investor’s Liquidated Damages Amount for each 30-day period (or pro rata for any portion thereof thereof) following the date by which such Resale Registration Statement should have been effective (until the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right earlier of the Investors to seek injunctive reliefdate on which the Resale Registration Statement is declared effective and end of the Effectiveness Period. The amounts payable as liquidated damages damages, pursuant to this paragraph or Section 2(a), shall be paid no later than five in arrears within three (53) Business Days after of the last day of each such 30-day period following the date of commencement of the Blackout Period accrual of Liquidated Damages (each a “Liquidated Damages Measurement Date”) and continuing until such time as Liquidated Damages cease to accrue, as determined pursuant to this paragraph or Section 2(a), as the termination of the Blackout Periodcase may be. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days, and for not more than an aggregate of sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Resale Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time would be, in the Registration Statement that good faith opinion of the Company, materially detrimental to the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must to amend or supplement the affected Resale Registration Statement or the related Prospectus so that such Resale Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Resale Registration Statement, Statement until the end of the Allowed Delay and shall (c) use reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Mill Road Capital, L.P.), Senior Subordinated Note Purchase and Security Agreement (Physicians Formula Holdings, Inc.)
Effectiveness. (i) The Corporation shall use its best efforts to file each Registration Statement within 45 calendar days after the request by the Holders hereunder if the Registration Statement relates to a public offering of shares of Common Stock, and 60 calendar days for any other Registration Statement, and to have each Registration Statement declared effective prior to the 60th calendar day following the date that such Registration Statement was initially filed with the SEC (the “Filing Date”) (or, in the event the SEC reviews and has written comments to the Registration Statement, the 90th calendar day following the Filing Date) (the “Effectiveness Deadline”); provided, however, that if the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as to such Registration Statement shall be the 3rd Business Day following the date on which the Corporation is so notified if such date precedes the dates otherwise required above, and the Corporation shall use its best efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of the following (the “Effectiveness Period”): (A) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders, (B) there otherwise ceases to be Registrable Securities, or (C) in the case of a Shelf Registration Statement, three years from the date of filing thereof; provided that if, at the expiration of such three-year period, any Registrable Securities remain outstanding, the Company shall use reasonable its best efforts to have file on the date of expiration of such three-year period a new Shelf Registration Statements declared effective as soon as practicableStatement. The Company Corporation shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) 48 hours, after (xX) the SEC notified the Company that it has no further Corporation receives written comments to a Registration Statement from the SEC, (Y) the Corporation is notified by the SEC that the Registration Statement will not be reviewed or is no longer subject to further review and comments, and (yZ) any a Registration Statement is declared effective. At such time as the Corporation notifies the Purchasers that a Registration Statement is declared effective as provided in the immediately preceding sentence, and the Corporation shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend For not more than 40 consecutive calendar days or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 total of not more than 75 calendar days (which need not be consecutiveconsecutive days) in any 36012-day period (month period, the Corporation may delay the disclosure of material non-public information concerning the Corporation, by deferring the filing of any such suspension Registration Statement as otherwise required under this Section 2, or suspending the use of any Prospectus included in any registration contemplated by this Section 2(c)(ii)Section, if such disclosure at the time is not, in the good faith opinion of the Corporation, in the best interests of the Corporation (an “Allowed Delay”). Upon disclosure of such information or ; provided, that the termination Corporation shall promptly (a) notify the Purchasers in writing of the condition described aboveexistence of (but in no event, without the Company prior written consent of a Purchaser, shall provide prompt notice the Corporation disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration StatementStatement until the end of the Allowed Delay, and shall (c) use its best efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (Square 1 Financial Inc), Registration Rights Agreement (Square 1 Financial Inc)
Effectiveness. This Agreement shall be automatically deemed effective on the date when the following conditions are satisfied or waived in writing by XENCOR (isuch date, the “Effective Date”), with the exception that Article 1, Section 10.1, Article 13, Section 12.3.3, Section 12.3.4, this Section 14.1.2 and Section 14.1.3 will be effective as of the Execution Date:
(a) The Company shall use reasonable best efforts consummation (the “Subsequent Financing Closing”) by Licensee of an equity financing transaction consummated following the Execution Date pursuant to have which Licensee has raised equity financing from one or more investors (the Registration Statements declared effective as soon as practicable. “Investors”) equaling an aggregate gross amount of [***] or more (the “Subsequent Financing”); and
(b) The Company shall notify issuance by Licensee to XENCOR of such number of fully paid and non-assessable shares of the same class and series of equity securities issued or issuable to the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of Subsequent Financing (the securities covered thereby. Subject to Section 2(d)“Subsequent Financing Securities”) that, if immediately following the Subsequent Financing Closing, XENCOR shall own (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC together with Licensee equity interests that Xencor acquired prior to the 120th day after Execution Date) fifteen percent (15%) of the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay Fully Diluted Capitalization (as defined below) or, if the Registration Statement is of Licensee (calculated on Form F-1, for a period of twenty (20an as-converted basis) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout PeriodEquity Consideration”). For each Investor purposes hereof, “Fully Diluted Capitalization” means all shares of common stock of Licensee that elects to receive liquidated damagesare (i) issued and outstanding, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything issuable upon the exercise and/or conversion of any outstanding options, warrants or other derivative securities and shares reserved for issuance and available for grant or to be reserved for issuance and available for grant at or prior to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case final closing of the Prospectus in light Subsequent Financing under any equity incentive plan or similar plan of Licensee, and (iii) assuming the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure issuance of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable all Subsequent Financing Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) Investors in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or connection with the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebySubsequent Financing.
Appears in 2 contracts
Sources: License Agreement (Zenas BioPharma, Inc.), License Agreement (Zenas BioPharma, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the any Registration Statements Statement declared effective as soon as reasonably practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the 120th day five (5) Business Days after the Closing Date (SEC shall have informed the Company that no review of the Registration Statement will be made or the 150th day if that the SEC reviews such has no further comments on the Registration Statement or (y) a Registration Statement covering the Additional Registrable Securities is not declared effective by the SEC prior to five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid invested by such Investor pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement (PLx Pharma Inc.), Registration Rights Agreement (PLx Pharma Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 2010-F K (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement Subscription Agreements by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five ten (510) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Better Choice Co Inc.), Registration Rights Agreement (Better Choice Co Inc.)
Effectiveness. (ia) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail Email as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities Securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC Commission prior to the 120th earlier of (i) five (5) Business Days after the Commission shall have informed the Company that no review of the Registration Statement will be made or that the Commission has no further comments on the Registration Statement; or (ii) the 90th day after the Closing Date (or the 150th 120th day if the SEC Commission reviews such the Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SECCommission (the “Effectiveness Deadline”), sales cannot be made continuously pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (each such event shall constitute a “Maintenance Failure”), Default” for purposes hereof. In the event that a Default occurs then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law law, commencing on the date the Default first occurred, and on each one month anniversary thereafter until the applicable Default is cured (each, a “Default Payment Date”), the Company shall not affect the right of the Investors pay to seek injunctive relief. The amounts payable each Investor an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 1.0% of the aggregate purchase price paid by such Investor pursuant to the Share Purchase Agreement for any Registrable Securities then held by such Investor on the applicable Default Payment Date. The parties hereto agree that in no event shall the aggregate amount of Liquidated Damages payable to the Investors exceed, in the aggregate, twenty-five percent (25%) of the aggregate purchase price paid by the Investors pursuant to the Share Purchase Agreement. If the Company fails to pay any Liquidated Damages pursuant to this paragraph shall be paid no later than Section 2.5(a) in full within five (5) Business Days after each such 30-day period following the commencement of applicable Default Payment Date, the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue Company will pay interest thereon at the a rate of 11.5% per month on any (or such liquidated damages payments lesser maximum amount that shall not is permitted to be paid by applicable law) to the Blackout Payment Date Investors, accruing daily from the date such Liquidated Damages are due until such amount is amounts, plus all such interest thereon, are paid in full.
. If paid between Default Payment Dates, Liquidated Damages shall be prorated on a days elapsed basis (iimeasured from and after the last Default Payment Date up to and until the date the Default is cured) Notwithstanding anything relative to the contrary contained herein, the Company may, upon written notice to any holder total number of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information days in the Registration Statement that period for which the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities Liquidated Damages are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyaccruing.
Appears in 2 contracts
Sources: Registration Rights Agreement (Athenex, Inc.), Registration Rights Agreement (Athenex, Inc.)
Effectiveness. (i) i. The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (Ai) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day fifth (5th) Business Day after the Closing Date (SEC shall have informed the Company that no review of the Registration Statement will be made or the 150th day if that the SEC reviews such has no further comments on the Registration Statement) (the “Effectiveness Deadline”), ; or (Bii) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments (each payment, a “Registration Delay Payment”) to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For , as liquidated damages and not as a penalty, in an amount equal to (a) in the case of each Investor that elects is a Purchaser, 1.5% of the aggregate Purchase Price (as defined in the Subscription Agreements) paid by such Purchaser; (b) in the case of each Investor who is an affiliate of a Purchaser and acquired Registrable Securities from such Purchaser for no additional consideration, 1.5% of the aggregate Purchase Price (as defined in the Subscription Agreements) paid by the Purchaser who was the transferor or assignor (an “Assigning Purchaser”); provided, however, if (1) the Assigning Purchaser retains any Registrable Securities, the Registration Delay Payment payable to receive liquidated damagessuch Assigning Purchaser shall be governed by this proviso to clause (b) rather than clause (a), and such Registration Delay Payment shall be allocated pro rata between the Investor and the Assigning Purchaser based on the number of Registrable Securities held by the Investor and the Assigning Purchaser at the commencement of the applicable Blackout Period, and (2) the Registrable Securities held by the Assigning Purchaser were transferred or assigned to more than one affiliate for no additional consideration, such payments Registration Delay Payment shall be allocated pro rata among such affiliates based on the number of Registrable Securities held by the each such affiliate at the commencement of the applicable Blackout Period; and (c) in the case of an Investor that is not a Purchaser and not otherwise covered by the preceding clause (b), 1.5% of the aggregate purchase price paid by such Investor to acquire the Registrable Securities covered by the Registration Statement. Such Registration Delay Payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts Registration Delay Payments payable as liquidated damages pursuant to this paragraph Section shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments Registration Delay Payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
ii. For not more than thirty (ii30) Notwithstanding anything to the contrary contained hereinconsecutive days or for a total of not more than ninety (90) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (Xi) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company has a bona fide business purpose for preserving as confidentialCompany, in the best interests of the Company; or (Yii) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, ; provided that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay; (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay; and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Arch Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) ten (10) Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement and (ii) the 60th day after the Closing Date initial filing of the Registration Statement (or the 150th 90th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 2010-F K (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 15% per month annum on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Securities Purchase Agreement (MEI Pharma, Inc.), Registration Rights Agreement (MEI Pharma, Inc.)
Effectiveness. This Supplement shall become effective as of the Third Closing Date upon the satisfaction of each of the following conditions and upon such effective date, this Supplement shall amend and completely restate and supersede the October 2002 Series 2001-A Supplement:
(i) The Company Trustee shall use reasonable best efforts have received a certificate, dated the Third Closing Date, of the secretary or assistant secretary of each Seller (a) attaching a true and complete copy of the constituting documents, resolutions of its Board of Directors and of all documents evidencing other necessary corporate action (in form and substance satisfactory to have the Registration Statements declared effective as soon as practicable. The Company shall notify Trustee) taken by it to authorize its execution, delivery and performance of the Investors by facsimile or e-mail as promptly as practicableAmendment Documents and the transactions contemplated thereby, and in any event(b) setting forth the incumbency of its officer or officers who may sign the Amendment Documents and all certificates, within forty-eight (48) hoursreports and statements delivered hereunder and under the Transaction Documents and the Amendment Documents, after (x) the SEC notified the Company that to which it has no further comments to the Registration Statement and (y) any Registration Statement is declared effectivea party, and shall simultaneously provide the Investors with access to including therein a copy signature specimen of any related Prospectus to be used in connection with the sale such officer or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullofficers.
(ii) Notwithstanding anything The Trustee and each Purchaser shall have received duly executed copies of the Amendment Documents each dated as of the Third Document Closing Date or the Third Closing Date, as applicable, including, without limitation, the Amendment to Series 2002-A Supplement and Consent duly executed by Maple.
(iii) Citibank shall have paid to the contrary contained hereinTrustee in consideration for the Additional Series 2001-A Certificates an amount equal to $35,000,000.
(iv) The Receivables Coverage Ratio and the Generation Coverage Ratio each shall be on the Third Closing Date and shall have been on each of the two prior Determination Dates occurring on October 3, 2002 and July 3, 2002 (the "PRIOR DETERMINATION DATES") not less than 2.00:1.00 and 2.25:1.00, respectively; PROVIDED, HOWEVER, for purposes of determining the Aggregate Required Coverage Amounts for the Third Closing Date and each Prior Determination Dates stated above, the Company mayRequired Coverage Amount with respect to Additional Series 2001-A shall be deemed outstanding and used in the calculation of the Aggregate Required Coverage Amount on each such Determination Date and the Third Closing Date.
(v) An additional amount shall have been deposited into the Series 2001-A Reserve Account equal to the amount necessary so that the total amount in the Series 2001-A Reserve Account, upon written notice after giving effect to any holder of Registrable Securities included in a Registration Statementsuch deposit, suspend is equal to the use of any Registration Statement, including any Prospectus Series 2001-A Required Amount that forms a part of a Registration Statement, if the Company (X) determines that it would be required on the first Distribution Date following the Third Closing Date.
(vi) [Intentionally Omitted].
(vii) No event has occurred and is continuing, or would result from the transactions to make disclosure occur on the Third Closing Date (a) that constitutes a Rapid Amortization Event or an Unmatured Rapid Amortization Event with respect to Series 2001-A or (b) that constitutes a default or event of default under any other material information agreement to which any Seller is a party, including without limitation as a result of any restatement by TFM, S.A. de C.V. of its unaudited financial statements for the period ended September 30, 2002.
(viii) The Trustee and the Series 2001-A Certificateholders shall have received (I) opinions of counsel, dated as of the Third Closing Date, from internal and outside United States and Mexican counsel to TMM and the other Sellers, including without limitation (a) that the Amendment Documents and the transactions contemplated thereby do not conflict with any Seller's other obligations (including the Indentures), (b) that the Amendment Documents, including without limitation the TMM Port Option and Put Agreements are valid and enforceable, (c) the perfection of the Trustee's lien and (d) the impact of Mexican withholding and VAT, and (II) a legal opinion from their special Mexican counsel, in form and substance satisfactory to the Trustee and the Series 2001-A Certificateholders, including those opinions described in Section 5.2(b) of the Master Trust Agreement.
(ix) TMM shall have not revoked or abandoned the exchange offers or consent solicitations or, without the approval of the Series 2001-A Series Required Investor Certificateholder, amended or modified in any material respect the terms of such offers or solicitations, described in the Registration Statement Form F-4.
(x) All corporate and legal proceedings and all documents and papers in connection with the transactions contemplated by the Amendment Documents shall be satisfactory in form and substance to the Trustee, and the Trustee shall have received all information and copies of all documents which it may reasonably have requested in connection therewith, such documents (where appropriate) to be certified by an authorized signatory of the Sellers or proper governmental authorities.
(xi) The Sellers shall have paid all up-front fees, subscription/arrangement fees, trustee fees and legal fees then payable including payment of the fees set forth in the Amendment Fee Letter.
(xii) The Sellers shall have furnished or caused to be furnished to the Trustee and the Series 2001-A Certificateholders such further certificates, Opinions of Counsel, Officers' Certificates, documents or instruments as the Trustee or the Series 2001-A Certificateholders may reasonably request, including Officers' Certificates attesting to the accuracy of items set forth in SECTIONS 2.4(a)(v) and (vii).
(xiii) TMM shall have received all necessary lender, governmental, corporate, shareholder or third party approvals, including without limitation the approval of API, SSA, Hacienda, the Mexican Foreign Investments Commission and Mexican antitrust authorities (if any of the foregoing is required) in connection with the execution and delivery of the Amendment Documents, including without limitation the TMM Port Option and Put Agreements.
(xiv) In the sole discretion of Citibank, N.A., the absence of any material adverse change in the financial markets or in Mexico, or in the business condition (financial or otherwise) or results of operations or prospects of TMM, any other Seller, Multimodal or the Port Company.
(xv) Each condition precedent set forth in each of the other Amendment Document including without limitation the receipt of evidence that the Company has a bona fide business purpose for preserving as confidential, (Yx) the Company determines it must amend or supplement Port Shares (as defined in the Registration Statement or Port Option Agreement) have the related Prospectus so that proper legend required pursuant to Section 6.6 of the Port Option Agreement and such Registration Statement or Prospectus restriction has been entered into the Port Company's Stockholders Registry Book pursuant to Section 6.7 of the Port Option Agreement and (y) the Grupo TFM Shares (as defined in the Option Agreement) have the proper legend (which such legend shall not include an untrue statement reflect the existence of the Amendment to Option Agreement) required pursuant to Section 6.6 of the Option Agreement and such restriction has been entered into Grupo TFM's Stockholders Registry Book pursuant to Section 6.7 of the Option Agreement.
(xvi) The Trustee shall have received a grant, from TMM Multimodal and in the form of a material fact or omit to state notarial instrument granted before a material fact required to be stated therein or necessary to make the statements thereinMexican Notary Public, in the case an irrevocable special power of attorney, under Article 2596 of the Prospectus in light Federal Civil Code (CODIGO CIVIL FEDERAL) and the corresponding articles of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment Civil Codes of the Companyfederal entities of Mexico, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination and Article 9 of the condition described abovegeneral Law of Negotiable Instruments and Credit Transactions (LEY GENERAL DE TITULOS Y OPERACIONES DE CREDITO) of Mexico, authorizing the Company shall provide prompt notice Amendment to holders whose Registrable Securities are included in Option Agreement and authorizing the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions Amendment to permit registered sales of Registrable Securities as contemplated herebyPut Option Agreement.
Appears in 2 contracts
Sources: Second Amended and Restated Series 2001 a Supplement (TMM Holdings Sa De Cv), Second Amended and Restated Series 2001 a Supplement (TMM Holdings)
Effectiveness. (i) The Company shall use reasonable best efforts to have the any Registration Statements Statement declared effective as soon as practicablepracticable after the filing. The Company shall respond promptly to any and all comments made by the staff of the SEC on any Registration Statement, and shall submit to the SEC, within two (2) business days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) business days after the submission of such request. The Company shall notify the Investors each Purchaser by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any such Registration Statement is declared effectiveeffective and shall, and shall simultaneously upon request, provide the Investors each Purchaser with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject .
(ii) If, with respect to Section 2(d), if any Registration Statement covering the Registrable Securities:
(A) such Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline (a “Filing Failure”),
(B) such Registration Statement covering the Registrable Securities is not declared effective (an “Effectiveness Failure”) by the SEC prior to the 120th day earlier of: (x) seven (7) Business Days after the Closing Date (SEC informs the Company that no review of such Registration Statement will be made or the 150th day if that the SEC reviews has no further comments on such Registration Statement, (y) the 175th calendar day following the Closing, or (z) in the event of a “review” by the SEC, the 205th calendar day following the Closing (as applicable, the “Effectiveness Deadline”), or or
(BC) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 2010-F K (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor Purchaser then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor Purchaser for such Registrable Securities then held by such Investor Purchaser on each of the following dates: on the initial date of the Filing Failure, Effectiveness Failure or Maintenance Failure, as applicable, and on every thirtieth (30th) day thereafter (pro rated for each periods less than thirty (30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective ) days) (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investors’ the Purchaser’s exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchaser to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Payment Date”). Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(iiiii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) 30 consecutive Trading Days or 60 total Trading Days in any 360-day period (any such suspension contemplated by this Section 2(c)(ii2(c)(iii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 2 contracts
Sources: Registration Rights Agreement (Arcutis Biotherapeutics, Inc.), Securities Purchase Agreement (Arcutis Biotherapeutics, Inc.)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Buyers by facsimile or e-electronic mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Buyers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date Effectiveness Deadline (or the 150th day if the SEC reviews such Registration Statement) (the an “Effectiveness DeadlineFailure”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), or the prospectus contained therein is not available for use for any reason but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, as partial relief for the damages by reason of the Effectiveness Failure or Maintenance Failure, as applicable (which remedy shall not be exclusive of any other remedies available at the election of each Investorlaw or in equity, including, without limitation, specific performance), the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesBuyer, as liquidated damages and not as a penalty, in an amount equal to 1% two percent (2%) of the aggregate amount paid pursuant invested by such Buyer (1) on the date of the Effectiveness Failure or Maintenance Failure, as applicable, and (2) for each thirty (30) day period (pro rated for partial periods) following the Filing Deadline for which no Registration Statement is filed with respect to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damagesSecurities, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Periodcured. Such payments shall be made payable in cash on the date of the Effectiveness Failure or Maintenance Failure, as applicable, and no later than the third (3rd) Business Day following each thirty (30) day period thereafter until cured. In the event the Company fails to each electing Investor make such payments in cash. Interest a timely manner in accordance with the foregoing, such payments shall accrue bear interest at the rate of 1% two percent (2%) per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date thirty (30) day period (prorated for partial periods) until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days, and for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Buyer in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of a Buyer) disclose to holders whose Registrable Securities are included such Buyer any material non-public information giving rise to an Allowed Delay, (b) advise the Buyers in writing to cease all sales under the Registration StatementStatement until the end of the Allowed Delay, and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Super League Gaming, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (or the 150th 120th day if the SEC reviews such the Registration Statement) or (y) a Registration Statement covering Additional Shares is not declared effective by the “Effectiveness Deadline”SEC within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (120 days if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (ii) below, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use its commercially reasonable best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to If the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within three (3) months following the Closing Date, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within three (3) months following demand of a Purchaser relating to the 120th day after Additional Registrable Securities to be covered thereby, provided that for either of such Registration Statements which is subject to review by the SEC staff (which shall not include a "plain English" review), such effective date shall be within four (4) months following the Closing Date or demand, as the case may be (each, a "Registration Date"), then the Company will make pro-rata payments to each Purchaser as liquidated damages and not as a penalty, in an amount equal to 2% of the sum of the aggregate amount paid by such Purchaser on the Closing Date to the Company for Preferred Shares still held by such Purchaser and the aggregate market value of Registrable Securities held by such Purchaser (with Warrants considered on an as-exercised basis) for each month (or portion thereof) following the 150th day if the SEC reviews Registration Date during which such Registration Statement) Statement has not been declared effective (the “Effectiveness Deadline”"Blackout Period"), provided, however, that no such liquidated damages shall be required to be paid by the Company to the extent and only for such number of days as such default is solely a result of the failure of any Purchaser to comply with its obligations under the Agreements, provided that the Company delivers a written notice to such Purchaser specifying such number of days as to which such default is solely such Purchaser's fault and such Purchaser countersigns such notice acknowledging such fault. Each such payment shall be due and payable within five (5) days of the end of each month (or ending portion thereof) of the Blackout Period until the termination of the Blackout Period. Such payments shall be in partial compensation to the Purchasers, and shall not constitute the Purchasers' exclusive remedy for such events. The Blackout Period shall terminate upon the effectiveness of the applicable Registration Statement. The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Purchasers, in lawful money of the United States or in shares of Common Stock at the Market Price, and amounts payable as liquidated damages shall be paid monthly within five (B5) business days of the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Amounts payable as liquidated damages hereunder shall cease when a Purchaser no longer holds Preferred Shares, Warrants, Registrable Securities or Additional Registrable Securities, as applicable.
(ii) In the event that (A) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (iii) below, but excluding any Allowed Delay (B) the Common Stock generally or the Registrable Securities (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange or trading of the Common Stock is suspended or halted thereon, in each case for more than one trading day, or (C) the Company fails, refuses or is otherwise unable to timely issue Underlying Shares upon conversion of Preferred Shares or Warrant Shares upon exercise of the Warrants in accordance with the terms of the Certificate and Warrants, in each case for this clause (C) within fifteen (15) trading days following the applicable Conversion Date (as defined belowin the Certificate) oror applicable exercise date of the Warrants, if as the Registration Statement is case may be, then each Purchaser shall have the right to sell, at any time thereafter, any or all of its Preferred Shares and Warrants to the Company for consideration (the "Mandatory Repurchase Price") equal to (I) for the Preferred Shares, the greater of (x) 120% of the Liquidation Value (as defined in the Certificate) of all such Preferred Shares being sold to the Company, or (y) the Liquidation Value for the Preferred Shares being sold to the Company divided by the then applicable Market Price multiplied by the greater of the last closing price of the Common Stock on Form F-1, for (i) the date a period Purchaser exercises its option pursuant to this subsection to require repurchase of twenty Preferred Shares or (20ii) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penaltyevent triggering Purchaser's remedies under this subsection first occurred, in an amount equal to 1each case payable in cash, and (II) for the Warrants, 120% of the aggregate amount paid pursuant product of (a) the difference between the greater of clauses (i) or (ii) above and the exercise price of the Warrants, multiplied by (b) the number of Warrants being sold to the Purchase Agreement by such Investor for such Company, payable in cash. In any case in which a Purchaser has the right to cause the purchase of its of Preferred Shares and/or Warrants under this subsection, it shall also have the right to cause the Company to purchase the Registrable Securities then held by such Investor that it owns, in whole or in part at the Purchaser's option, at a price equal to the Mandatory Repurchase Price of the Preferred Shares which were converted into Underlying Shares or Warrants which were exercised for each 30-day period or pro rata Warrant Shares, as applicable. Any Purchaser shall have the right to withdraw any request for redemption hereunder at any portion thereof following time prior to its receipt of the date by which such Registration Statement should have been effective (the “Blackout Period”)Mandatory Repurchase Price. For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy The mandatory purchases provided for such events and shall be above are in addition to and not in lieu or limitation of any other rights the Investors Purchasers may have hereunder at law, in equity or under applicable law the terms of the Certificate, the Purchase Agreement, the Warrants and shall not affect this Agreement, including without limitation the right to monetary contract damages and specific performance, provided that once any Purchaser has received the Mandatory Repurchase Price upon redemption of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each any Preferred Shares, Warrants or Registrable Securities, then such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that Purchaser shall not be paid by entitled to any further remedies, damages or payments with respect to such Preferred Shares, Warrants and/or Registrable Securities sold to the Blackout Payment Date until such amount is paid Company hereunder. Each Purchaser shall be entitled to specific performance of any and all obligations of the Company in fullconnection with the registration rights of the Purchasers hereunder.
(iiiii) Notwithstanding anything For not more than fifteen (15) consecutive trading days (or twenty (20) consecutive trading days if due to the contrary contained hereina merger or acquisition) or for a total of not more than twenty-seven (27) trading days (or thirty-five (35) trading days if due to a merger or acquisition) in any consecutive twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Purchasers in writing of the existence of (but in no event event, without the prior written consent of a Purchaser, shall holders the Company disclose to such Purchaser any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchasers in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (until the end of the Allowed Delay. To the extent any such suspension contemplated by this Section 2(c)(ii)Purchaser elects to receive and actually receives such material non-public information, an “Allowed Delay”). Upon disclosure of each Purchaser shall treat any such information or the termination as confidential information of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration StatementCompany, and shall promptly terminate not improperly use or disclose any suspension such information except with the prior written consent of sales it has put into effect the Company. The duration of the periods provided for in Sections 7.2 and shall take such other reasonable actions to permit registered sales 7.3 of Registrable Securities as contemplated herebythe Purchase Agreement will be extended by the number of days of any and all Blackout Periods, including any Allowed Delays.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Effective Date (or the 150th 120th day if the SEC reviews the Registration Statement), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (120 days if the “Effectiveness Deadline”SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the amount that is equal to (A) the aggregate amount paid pursuant to the Purchase Agreement number of Alternative Warrant Shares (i.e., 522,815), multiplied by such Investor for such Registrable Securities then held by such Investor (B) an assumed price per Warrant Share of $2.00, for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Alternative Warrants Registration Rights Agreement (Tapestry Pharmaceuticals, Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within 90 days following the Closing Date or, if the Registration Statement is subject to the 120th day after full SEC review (which excludes "plain English" and other immaterial comments), then within 20 days following the Closing Date (or in either case, the 150th day if the SEC reviews such "Registration Statement) (the “Effectiveness Deadline”Date"), or (B) after a the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such the Registration Statement for any reason but except as excused pursuant to subparagraph (including without limitation by reason of a stop orderii) below, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, for any 30 day period or portion thereof following the Registration Date during which any of the events described in (A) or (B) above occurs and is continuing (the "Blackout Period") in an amount equal to 12% of the aggregate amount Purchase Price paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following to the date by which such Registration Statement should have been effective (Company on the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefClosing Date. The amounts payable as liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States and shall be paid no later than five (5) Business Days after each such 30-day period on demand from time to time following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments The same remedy shall be made available in the case of any failure to each electing Investor timely issue Underlying Shares upon conversion of the Debentures or Warrant Shares upon exercise of the Warrants, or in cashthe case of any suspension from trading or delisting of the Common Stock from the Nasdaq Stock Market. Interest shall accrue If at any time a payment due hereunder remains unpaid for more than sixty (60) days after demand, the rate of 1damage payments shall thereafter be increased for all purposes to a rate equal to 3% per month on 30 day period. The remedies set forth in this section are not intended to be exclusive, and shall be in addition to any such liquidated other remedies available at law or in equity. Amounts payable as damages payments that hereunder shall not be paid by cease when the Blackout Payment Date until such amount is paid in fullInvestors no longer hold any Debentures, Warrants or Registrable Securities, or Additional Registrable Securities, as applicable.
(ii) Notwithstanding anything to the contrary contained herein, the The Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may terminate or suspend the use effectiveness of any Registration Statement, including any Prospectus that forms registration contemplated by this Section one time for a part period of a Registration Statement, not more than twenty (20) days if the Company (X) determines that it would be required shall deliver to make disclosure the Investors a certificate signed by the President of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such timestating that, in the good faith judgment of the Board of Directors of the Company, it would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities (A) be suspended from selling Registrable Securities pursuant seriously detrimental to the Registration Statement business of the Company for a period that exceeds 120 calendar days such registration to be effected or remain effective at such time, (which need not be consecutiveB) interfere with any proposed or pending material corporate transaction involving the Company or any of its subsidiaries, or (C) result in any 360premature disclosure thereof. In such a case, the Company shall not disclose to an Investor any facts or circumstances constituting material non-day period public information, without the prior written consent of such Investor. The duration of the MFN Period provided for in the Purchase Agreement, the Debentures and the Warrants will be extended by the number of days of (x) any such termination or suspension of the effectiveness of any registration contemplated by this Section 2(c)(ii)2, an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described aboveand (y) without duplicating, the Company shall provide prompt notice to holders whose Registrable Securities are included number of days in any Blackout Period (computed as if the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyexcused period in this subsection (c)(ii) did not apply).
Appears in 1 contract
Sources: Registration Rights Agreement (Sunrise Technologies International Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Holders by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Holders with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 150th day after the Initial Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”)Date, or (B) after a Registration Statement has been declared effective by the SECSEC but before the end of the Effectiveness Period (as defined below), sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) or, if or the Registration Statement is on Form F-1, for a period inability of twenty (20) days following any Holder to sell the date on which the Company files a post-effective amendment Registrable Securities covered thereby due to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investormarket conditions, the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesHolder, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid invested by such Holder pursuant to the Purchase Second Lien Loan Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor ; provided, however, that elects the maximum aggregate liquidated damages payable to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and a Holder under this Agreement shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right three percent (3%) of the Investors aggregate amount invested by such Holder pursuant to seek injunctive reliefthe Second Lien Loan Agreement. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than monthly within five (5) Business Days after of the last day of each such 30-day period month following the NY01\SherC\4300269.1 4 commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Holder in cash. Interest No liquidated damages shall accrue at under this Section 2(c)(i) if such delay in the rate Registration Statement being declared effective is substantially caused by one or more of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullHolders or their agents, representatives or counsel.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than ten (10) consecutive days or for a total of not more than thirty (30) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, however, that the Company shall provide prompt notice promptly (a) notify each Holder in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of the applicable Holder) disclose to holders whose Registrable Securities are included such Holder any material non-public information giving rise to an Allowed Delay, (b) advise the Holders in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use best efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (or the 150th 120th day if the Registration Statement is reviewed by the SEC), (y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (120 days if the “Effectiveness Deadline”Registration Statement is reviewed by the SEC) or (z) a Shelf Registration Statement is not declared effective by the SEC within ninety (90) days after the Qualification Deadline (120 days if the Registration Statement is reviewed by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (xA) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effectiveeffective and (B) the filing of any related Prospectus under Rule 424(b), and at which time the Company shall simultaneously also provide the Investors with access to a copy copies of any such related Prospectus to be used in connection with the sale or other disposition of the securities covered therebyProspectus. Subject to Section 2(d), if If (A) a Registration Statement covering the resale of the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing (the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (Statement is reviewed by the “Effectiveness Deadline”SEC), or (B) after a the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such the Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 1(i) 1.0% of the aggregate amount paid pursuant to Market Price (as defined in the Purchase Agreement by such Investor for such Amended and Restated Notes) of the Registrable Securities then held by as of the date such Investor Registration Statement is required to be declared effective for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”)) and (ii) 1.0% of the Market Price (as defined in the Amended and Restated Notes) of the Registrable Securities as of the date the Blackout Period begins for each 30-day period or pro rata for any portion thereof that sales could not be made thereunder as provided in clause (B) above; provided, however, that liquidated damages shall be payable pursuant to this Section 2(c) only in the event that any delay or blackout occurs as a result of the failure by the Company to comply with its obligations under this Agreement. For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or (ii) the 90th day after the First Closing Date (the 120th day in the event that the Registration Statement is subject to review by the SEC), or the 150th day if (y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (120 days in the “Effectiveness Deadline”event that the Registration Statement is subject to review by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefevents. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within ninety (90) days following the Closing Date, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within ninety (90) days following the demand of the Investor relating to the 120th day after Additional Registrable Securities covered thereby, or with respect to either Registration Statement which is subject to review by the SEC staff, within one hundred thirty-four (134) days following the Closing Date or demand, as the case may be (or the 150th day if the SEC reviews such each, a "Registration Statement) (the “Effectiveness Deadline”Date"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) orthe Common Stock generally or the Registrable Securities specifically is not listed or included for quotation on the Nasdaq National Market System, if the Registration Statement is on Form F-1Nasdaq Small Cap Market, for a period of twenty (20) days following the date on which New York Stock Exchange or the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)American Stock Exchange, then, at the election of each Investor, then the Company will make pro pro- rata payments to each electing Investor then holding Registrable Securitiesthe Investor, as liquidated damages and not as a penalty, in an amount equal to 12% of the aggregate amount paid pursuant by the Investor on the Closing Date to the Purchase Agreement by such Investor Company for such Registrable Securities then held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such any of the events described in (A) or (B) or (C) above occurs and is continuing (the "Blackout Period"). The Blackout Period shall terminate upon (x) the effectiveness of the applicable Registration Statement should have been effective in the case of (A) and (B) above; (y) listing or inclusion of the “Blackout Period”Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange in the case of (C) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). For each If the Blackout Period should continue for three (3) months, then, at the option of the Investor, the Company shall issue to the Investor Warrants to purchase a number of shares equal to 20% of the number of shares of Common Stock then owned by the Investor, at an exercise price equal to the lesser of the then Market Price (as that elects term is defined in the Purchase Agreement) and the Warrant Price (as that term is defined in the Warrants) and otherwise in form and substance as the Warrants issued pursuant to receive liquidated damages, such payments the Purchase Agreement). The Warrant issuance shall constitute such Investors’ not be exclusive monetary remedy for such events and shall be in addition to of any other rights the Investors may have hereunder remedies available at law or under applicable law and shall not affect the right of the Investors to seek injunctive reliefin equity. The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Company, in lawful money of the United States or in shares of Common Stock at the Market Price (as that term is defined in the Purchase Agreement), and amounts payable as liquidated damages shall be paid no later than five (5) Business Days after monthly on the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such Amounts payable as liquidated damages payments that hereunder shall not be paid by the Blackout Payment Date until such amount is paid in fullcease when an Investor no longer holds Warrants or Registrable Securities, or Additional Registrable Securities, as applicable.
(ii) Notwithstanding anything For not more than thirty (30) consecutive trading days (or not more than forty five (45) consecutive trading days if the event giving rise thereto is an acquisition valued at in excess of $10,000,000 and the consummation of which is required to the contrary contained hereinbe reported in a Current Report on Form 8-K pursuant to Item 2 thereof), or for a total of not more than sixty (60) trading days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investor in writing of the existence of (but in no event event, without the prior written consent of the Investor, shall holders the Company disclose to the Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investor in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination The duration of the condition described above, Restricted Period will be extended by the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, number of days of any and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyall Allowed Delays.
Appears in 1 contract
Sources: Registration Rights Agreement (Boston Life Sciences Inc /De)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicablereasonably practicable after the filing thereof, including responding as promptly as reasonably practicable to any comments from the SEC with respect to the Registration Statement. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) 48 hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullregistered thereunder.
(ii) Notwithstanding anything to the contrary contained herein, (A) the Company shall not be required to file a Registration Statement (or any amendment thereto) or, if a Registration Statement has been filed but not declared effective by the SEC, request effectiveness of such Registration Statement, for a period of up to 45 days, if the Company furnishes to the Investors requesting registration pursuant to Section 3(a) a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board (1) the Company determines in good faith that a postponement is in the best interest of the Company and its stockholders generally due to a pending transaction involving the Company (including a pending securities offering by the Company, or any proposed financing, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company), (2) the Company determines such registration would render the Company unable to comply with applicable securities laws, (3) the Company determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (4) audited financial statements as of a date other than the fiscal year end of the Company would be required to be prepared; provided, however, that the Company may not invoke this right more than once in any 12-month period; and provided, further, that the Company shall not register any securities for its own account or that of any other stockholder during such 45 day period; and (B) the Company may, upon written notice to any holder of Registrable Securities included in a Registration StatementInvestor, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading misleading, or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders Investors of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) 30 consecutive Trading Days or 60 total Trading Days in any 360180-day period (any such suspension contemplated by this Section 2(c)(ii3(b)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, Investors and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby. A demand for registration shall not be counted for purposes of Section 3(a) if such demand is withdrawn by the Required Investors after a notice of an Allowed Delay and prior to the effectiveness of the Registration Statement that is the subject of the demand.
Appears in 1 contract
Sources: Voting and Warrant Extension Agreement (Envoy Medical, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchaser by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight five (485) hoursdays, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective (the date of such first Registration Statement being declared effective, the “Effective Date”) and shall simultaneously provide the Investors Purchaser with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if . If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to Effectiveness Deadline due to the 120th day after the Closing Date (or the 150th day if the SEC reviews Company not exhibiting reasonable efforts to meet such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of the Purchaser to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securitiesthe Purchaser, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to invested by the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor Purchaser for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages; provided, however, such damages shall cease to accrue pursuant to clause (A) above on the 180th day following the Closing Date. Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchaser to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within two (52) Business Days after the first day of each 30-day period (in other words, the Company will pay to the Purchaser, in advance, the full amount of damages due and owing for each such 30-day period following the commencement of the Blackout Period Period) until the termination of the Blackout Period. Such payments shall be made to each electing Investor the Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective not later than the earlier to occur of (y) 120 days after the date of filing of such Registration Statement, or (z) five (5) Business Days following the Company’s receipt of a no-review letter from the SEC relating to the Registration Statement; provided, however, if the Registration Statement is not declared effective within the time period set forth above, the Company shall continue to use its best efforts to have the Registration Statement declared effective as soon as practicablepossible thereafter. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48) hours, after (xA) the SEC notified the Company that it has no further comments does not use its best efforts to have the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used effective in connection accordance with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”)preceding sentence, or (B) after a Registration Statement has been declared effective by the SEC, SEC sales cannot be made pursuant to such Registration Statement for any reason (including including, without limitation limitation, by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay except as excused pursuant to subsection (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesHolder, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant invested by such Holder (for purposes of this Agreement, the Placement Agent shall be deemed to have invested an amount equal to ten percent (10%) of the aggregate purchase price of the Shares sold in the Private Placement, and for all other Holders, the amount invested by a Holder shall include the purchase price of the Common Stock acquired by such Holder and shall exclude any amount attributable to the Purchase Agreement Warrants acquired by such Investor for such Registrable Securities then held by such Investor Holder in the Private Placement) for each 3010-day period or pro rata for any portion thereof following the date (1) by which such Registration Statement should have been effective as described in (A) above had the Company used its best efforts to have the Registration Statement declared effective or (2) sales cannot be made pursuant to such Registration Statement after it has been declared effective as described in (B) above (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Holders, and shall not constitute such Investorsthe Holders’ exclusive monetary remedy for such events and events. The Blackout Period shall be in addition to any other rights terminate upon (x) the Investors may have hereunder or under applicable law and shall not affect the right effectiveness of the Investors to seek injunctive reliefRegistration Statement in the case of (A) above; and (y) the Registration Statement again being available for sales by the Holders in the case of (B) above. The amounts payable as liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States, and amounts payable as liquidated damages shall be paid no later than five within two (52) Business Days after of the last day of each such 3010-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made Notwithstanding anything herein to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that contrary, the Company shall not be paid by required to pay any penalties to or otherwise compensate the Blackout Payment Date until Holders solely with regard to the failure to maintain the effectiveness of the Registration Statement as it applies to the Common Stock issued or issuable upon conversion of the Warrants (the “Warrant Shares”) if the Company fails to maintain such amount effectiveness and (i) the Company is paid in fullsubsequently required to issue unregistered Warrant Shares or (ii) the Holders are subsequently unable to sell the Warrant Shares.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than fifteen (15) consecutive days or for a total of not more than thirty (30) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section 2, if the disclosure of which such material non-public information at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Holders in writing of the existence of (but in no event, without the prior written consent of a Holder, shall the Company disclose to holders whose Registrable Securities are included such Holder any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Holders in writing to cease all sales under the Registration Statement, and shall promptly terminate any suspension Statement until the end of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebythe Allowed Delay.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day earlier of (i) five (5) Business Days after the Closing Date (SEC shall have informed the Company that no review of the Registration Statement will be made or the 150th day if that the SEC reviews such has no further comments on the Registration StatementStatement or (ii) (the “Effectiveness Deadline”)August 15, 2014, or (B) after during the initial six month period following the date of this Agreement, a Registration Statement has been declared effective by the SEC, SEC but sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything herein to the contrary contained hereincontrary, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Mobivity Holdings Corp.)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Initial Registration Statements Statement and the amendment(s) declared effective as soon as practicableby the SEC no later than the earlier of (i) fifty (50) days following the filing of the Initial Registration Statement and (ii) the fifth business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”), subject to the approval of the conversion of Convertible Shares being received at the Company’s special meeting of stockholders to be held no later than March 5, 2025. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Initial Registration Statement is declared effective, effective or is supplemented and shall simultaneously provide the Investors Investor with access to a copy copies of any related Prospectus prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject The Company shall use reasonable best efforts to Section 2(d), if (A) a keep the Initial Registration Statement covering effective pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investors of all of the Registrable Securities covered thereby at all times until the earliest to occur of the following events: (i) the date that is not declared three years following the initial effective by date of the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Initial Registration Statement; (ii) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a postInvestors shall have resold all the Registrable Securities covered thereby; and (iii) the date on which the Registrable Securities may be resold by the Investors without registration and without regard to any volume or manner-effective amendment to incorporate of-sale limitations by reason of Rule 144, without the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, requirement for the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, be in an amount equal to 1% compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective similar effect (the “Blackout Registration Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events The Initial Registration Statement (including the amendments or supplements thereto and shall be in addition to any other rights the Investors may have hereunder or under applicable law and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on contain any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebymisleading.
Appears in 1 contract
Sources: Registration Rights Agreement (Outset Medical, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicablereasonably practicable after the filing thereof. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) ten Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement and (ii) the 60th day after the Closing Date (or the 150th 90th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 2010-F K (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid in cash no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cashPeriod (the “Blackout Period Payment Date”). Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. Notwithstanding the foregoing, the Company will not be liable for any liquidated damages under this Section 2(c)(i) with respect to any Warrant Shares prior to the issuance.
(ii) Notwithstanding anything to the contrary contained herein, (i) the Company shall not be required to file a Registration Statement (or any amendment thereto) or, if a Registration Statement has been filed but not declared effective by the SEC, request effectiveness of such Registration Statement, for a period of up to forty-five (45) days, if (A) the Company determines in good faith that a postponement is in the best interest of the Company and its stockholders generally due to a pending transaction involving the Company (including a pending securities offering by the Company, or any proposed financing, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company), (B) the Company determines such registration would render the Company unable to comply with applicable securities laws, (C) the Company determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (D) audited financial statements as of a date other than the fiscal year end of the Company would be required to be prepared; and (ii) the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) 30 consecutive Trading Days or 60 total Trading Days in any 360180-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Lyra Therapeutics, Inc.)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within three (3) months following the Closing Date, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within three (3) months following the demand of an Investor relating to the 120th day after Additional Registrable Securities covered thereby, or with respect to either a Registration Statement which is subject to full review by the SEC staff (which shall not include a "plain English" review), within four (4) months following the Closing Date or demand, as the case may be (or the 150th day if the SEC reviews such each, a "Registration Statement) (the “Effectiveness Deadline”Date"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) orthe Common Stock generally or the Registrable Securities specifically are not listed or included for quotation on the Nasdaq National Market System, if the Registration Statement is on Form F-1Nasdaq Small Cap Market, for a period of twenty (20) days following the date on which New York Stock Exchange or the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)American Stock Exchange, then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 12% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor on the Closing Date to the Company for such Registrable Securities then shares of Common Stock still held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A) or (B) or (C) above occurs and is continuing (the “"Blackout Period”"). For each Investor , provided, however, that elects in the case of the events described in (A) or (B) above with respect only to receive liquidated damagesthe Additional Registrable Securities, such payments penalty shall constitute equal 2% of the aggregate market value of such Investors’ exclusive monetary remedy Additional Registrable Securities for the duration of the Blackout Period. Each such events and payment shall be in addition to any other rights the Investors may have hereunder or under applicable law due and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than within five (5) Business Days after each such 30-day period following the commencement days of the Blackout Period until the termination end of each month (or ending portion thereof) of the Blackout Period. Such payments shall be made in partial compensation to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that Investors, and shall not be paid by constitute the Investors' exclusive remedy for such events. The Blackout Payment Date until such amount is paid Period shall terminate upon (x) the effectiveness of the applicable Registration Statement in full.the case of (A) and (B)
(ii) Notwithstanding anything to the contrary contained hereinFor not more than ten (10) consecutive trading days or for a total of not more than twenty (20) trading days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination The duration of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included MFN Period provided for in the Registration Statement, Purchase Agreement will be extended by the number of days of any and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyall Allowed Delays.
Appears in 1 contract
Sources: Registration Rights Agreement (Interleukin Genetics Inc)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicablepracticable after the filing thereof. The Company shall respond promptly to any and all comments made by the staff of the SEC on such Registration Statement, and shall submit to the SEC, within two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on such Registration Statement, as the case may be, a request for acceleration of the effectiveness of such Registration Statement to a time and date not later than two (2) Business Days after the submission of such requests. The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Investor with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a such Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th 60th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), Filing Deadline or (B) after a such Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to if such Registration Statement for is not available to cover any reason (sales of Registrable Securities registered by such Registration Statement including without limitation by reason of a stop order, order or the Company’s failure to update such Registration Statement), but excluding other than as a result of any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing the Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to Conversion Amount of the Purchase Agreement by such Investor for such Registrable Securities then held by such the Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investors’ the Investor’s exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Investor to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing the Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days or for a total of not more than sixty (60) days (which need not be consecutive) in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material nonpublic information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice to holders whose promptly (a) notify the Investor then holding Registrable Securities are included in writing of the Registration Statementcommencement of an Allowed Delay, and but shall promptly terminate not (without the prior written consent of the Investor) disclose to the Investor any suspension of sales it has put into effect and shall take such other reasonable actions material nonpublic information giving rise to permit registered sales of an Allowed Delay, (b) advise the Investor then holding Registrable Securities in writing to cease all sales under such Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as contemplated herebypromptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Argos Therapeutics Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicablepracticable after it is filed with the SEC. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48) hours, after (xA) the Company fails to file with the SEC notified a Registration Statement on or before the date by which the Company that it has no further comments is required to file the Registration Statement and pursuant to Section 2(a)(i) above, (yB) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access Company fails to a copy of any related Prospectus to be used in connection file with the sale or other disposition of SEC the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering Additional Registrable Securities within thirty (30) days following demand of the Purchaser relating to the Additional Registrable Securities to be covered thereby, (C) the Registration Statement covering Registrable Securities is not declared effective by the SEC prior within ninety (90) days following the Closing Date, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within ninety (90) days following demand of the Purchaser relating to the 120th day after Additional Registrable Securities to be covered thereby, provided that for either of such Registration Statements which is subject to review by the SEC staff (which shall not include a review which is primarily a "plain English" review), such effective date shall be within one hundred twenty (120) days following the Closing Date (in the case of the Registration Statement required by Section 2(a)(i)) or one hundred twenty (120) days following demand (in the 150th day if the SEC reviews such case of a Registration StatementStatement required by Section 2(a)(ii)) (the “Effectiveness Deadline”each, a "Registration Date"), or (BD) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement) but except as excused pursuant to subparagraph (ii) below, (E) the Common Stock generally or the Registrable Securities (or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the Nasdaq, the Nasdaq Small Cap, the NYSE or the AMEX (each an "Approved Market"), but excluding any Allowed Delay or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the principal market for the Common Stock, or (as defined belowF) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment fails, refuses or is otherwise unable timely to incorporate issue Underlying Shares upon conversion of the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)Note or Warrant Shares upon exercise of the Warrants in accordance with the terms of the Note and the Warrants, thenor certificates therefor as required under the Transaction Documents, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, the Purchaser as partial liquidated damages for the minimum amount of damages to the Purchaser by reason thereof, and not as a penalty, in an amount equal to 1at the rate of 2% per month of the sum of (x) the outstanding principal amount of, and accrued interest on, the Note held at such time by the Purchaser plus (y) the product of (i) the average of the daily VWAPs for all of the Trading Days during the particular portion of a Blackout Period for which such computation is being made times (ii) the number of Registrable Securities issued to and held by the Purchaser plus (z) the amount, if any, by which the product of (i) the average of the daily VWAPs for all of the Trading Days during the particular portion of the Blackout Period for which such computation is being made times (ii) the number of Warrant Shares issuable upon exercise of the unexercised portion of the Warrants held at such time by the Purchaser exceeds the aggregate amount paid pursuant Purchase Price of the number of Warrant Shares issuable upon exercise of the unexercised portion of the Warrants held at such time by the Purchaser, for the period following the Registration Date during which any of the events described in clause (A), (B), (C), (D), (E) or (F) above occurs and is continuing (the "Blackout Period"). Each such payment shall be due and payable within five (5) days after the end of each calendar month of the Blackout Period until the termination of the Blackout Period and within five (5) days after such termination. Such payments shall be in partial compensation to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following Purchaser, and shall not constitute the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ Purchaser's exclusive monetary remedy for such events and events. The Blackout Period shall be in addition to any other rights terminate upon (v) the Investors may have hereunder or under applicable law and shall not affect the right filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (E) above; (y) delivery of such shares or certificates in the case of clause (F) above; and (z) in the case of the events described in clauses (C) or (D) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be paid payable, at the option of the Purchaser, in lawful money of the United States or in shares of Common Stock valued for this purpose at the lower of the Conversion Price or the Computed Market Price. Amounts payable as liquidated damages hereunder shall cease when the Purchaser no later longer holds the Note, the Warrants, Registrable Securities or Additional Registrable Securities.
(ii) For not more than five (5) Business consecutive Trading Days after each such 30-day period following the commencement or for a total of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor not more than twenty (20) Trading Days in cash. Interest shall accrue at the rate of 1% per any consecutive twelve (12) month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinperiod, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which information at such timethe time is not, in the good faith judgment opinion of the Company, in the best interests of the Company or would adversely affect be unduly detrimental to the Company's affairs (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Purchaser in writing of the existence of (but in no event event, without the prior written consent of the Purchaser, shall holders the Company disclose to the Purchaser any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchaser in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after within ninety (90) days following the Closing Date (or 140 days following the 150th day if Closing Date in the event of a full SEC review of the Registration Statement), or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC reviews within three (3) months following demand of a Purchaser relating to the Additional Registrable Securities to be covered thereby (or four (4) months following such demand in the event of a full SEC review of the Registration Statement) (each of the “Effectiveness Deadline”foregoing deadlines, a "Registration Date"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (C) the ADRs generally or the Registrable Securities (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small-Cap Market, the New York Stock Exchange or the American Stock Exchange (each an "Approved Market") or trading of the Common Stock is suspended or halted thereon, or (D) the Company fails, refuses or is otherwise unable to timely issue Underlying Shares upon conversion of Notes or Warrant Shares upon exercise of the Warrants, in accordance with the terms of the Notes and Warrants, or unlegended certificates for ADRs as defined below) orrequired under the Agreements, if the Registration Statement is on Form F-1, for a period of twenty in each case within ten (2010) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)Purchaser's written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then, at the election of each Investor, then the Company will make pro pro-rata payments to each electing Investor then holding Registrable Securities, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 12% of the sum of the aggregate principal amount paid pursuant then outstanding under the Notes (1.25% for any Blackout Period due solely to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor clause (A) above) for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A), (B), (C) or (D) above occurs and is continuing (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, Each such payments shall constitute such Investors’ exclusive monetary remedy for such events and payment shall be in addition to any other rights the Investors may have hereunder or under applicable law due and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than within five (5) Business Days after days of the end of each such 30-day period following the commencement month (or ending portion thereof) of the Blackout Period until the termination of the Blackout Period. Such payments shall be made in partial compensation to each electing Investor the Purchasers, and shall not constitute the Purchasers' exclusive remedy for such events. The Blackout Period shall terminate upon (w) the effectiveness of the applicable Registration Statement in cashthe case of (A) and (B) above; (x) listing or inclusion and/or trading of the ADRs on an Approved Market in the case of (C) above; (y) delivery of such shares or ADRs in the case of (D) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). Interest The amounts payable as liquidated damages pursuant to this paragraph shall accrue be payable, at the rate option of 1% per month the Purchasers, in lawful money of the United States or in shares of Common Stock, represented by ADRs, at the lower of the Conversion Price or the closing bid price of the ADRs on any such the Principal Market on the last trading day of the applicable month, and amounts payable as liquidated damages payments that shall not be paid by monthly within five (5) business days of the last day of each month following the commencement of the Blackout Payment Date Period until such amount is paid in fullthe termination of the Blackout Period. Amounts payable as liquidated damages hereunder shall cease when a Purchaser no longer holds Notes, Warrants, Registrable Securities or Additional Registrable Securities, as applicable.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than five (5) consecutive trading days or for a total of not more than twenty (20) trading days in any consecutive twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Purchasers in writing of the existence of (but in no event event, without the prior written consent of a Purchaser, shall holders the Company disclose to such Purchaser any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchasers in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Trinity Biotech PLC)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”)filing date, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Purchaser to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such Registrable Securities then held by such Investor Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within ten (510) Business Days after days of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall expire upon the declaration of effectiveness by the SEC of the Registration Statement (if the Blackout Period is covered by clause (A) of this Section 2(c)(i)) or the date on which sales pursuant to the Registration Statement may resume (if the Blackout Period is covered by clause (B) of this Section 2(c)(i)). Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of a Purchaser) disclose to holders whose Registrable Securities are included such Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Authentidate Holding Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicable. Moreover, the Company shall use commercially reasonable efforts to have the SEC declare any such Registration Statements effective no later than 4:00 pm (ET) on the date that such Registration Statement is so declared effective. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement or (ii) the 90th day after the Closing Date (or the 150th 120th day if the SEC reviews such Registration Statement), or (y) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement or (ii) the 75th day after the Qualification Deadline (the “Effectiveness Deadline”105th day if the SEC reviews such Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under such Registration Statement until the Registration Statement, end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Eleven Biotherapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (or the 150th 120th day if the SEC reviews such the Registration Statement) (the earliest of such dates, the “Required Effectiveness DeadlineDate”) or (y) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Qualification Deadline (the 120th day if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicablepracticable after filing. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to the provisions of Section 2(d), if (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 115th day after the Closing Date (or the 150th 135th day if the SEC reviews the Registration Statement), (y) a Registration Statement covering Additional Shares is not declared effective by the SEC within 115 days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (135 days if the SEC reviews the Registration Statement) or (z) a Shelf Registration Statement is not declared effective by the “Effectiveness Deadline”SEC within 115 days after the Qualification Deadline (135 days if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Precision Optics Corporation Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the any Registration Statements Statement declared effective as soon as practicable. The term “commercially reasonable efforts” shall mean, among other things, that (A) the Company shall respond to comments received from the SEC with respect to a Registration Statement as soon as reasonably practicable following the receipt thereof and (B) the Company shall submit to the SEC, within two (2) Trading Days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff of the SEC has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than two (2) Trading Days after the submission of such request. The Company shall notify the Investors Holders by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Holders with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Trading Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date Date, or (or the 150th day if y) a Registration Statement required under Section 2(a)(iii) is not declared effective by the SEC reviews such prior to the earlier of (i) five (5) Trading Days after the SEC shall have informed the Company that no review of the Registration StatementStatement will be made or that the SEC has no further comments on the Registration Statement or (ii) (the “Subsequent Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SECSEC but before the end of the Effectiveness Period (as defined below), sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesHolder, as partial liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement (directly or indirectly) by such Investor Holder for the Standby Shares (or such Registrable Securities then held by such Investor Holder’s interest therein) for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investors’ the exclusive monetary remedy of the Holders for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Holders to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Trading Days after of the last day of each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Holder in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(iiA) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive trading days or for a total of not more than forty-five (45) trading days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (X1) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (Y2) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or misleading; and (ZB) if any Registration Statement would other otherwise be able to be declared effective by the Company has experienced or is experiencing some other material non-public eventSEC, including a pending transaction involving but for the Company, date on which such Registration Statement being declared effective would be more than 45 days from the disclosure of which at such time, in the good faith judgment last day of the Company, would adversely affect ’s fiscal year but prior to the date on which the Company; provided’s annual report on Form 10-K for such immediately preceding fiscal year is required to be filed with the SEC (the “10-K Filing Deadline”), howeversuch that the Registration Statement cannot be declared effective until the date on which such annual report on Form 10-K is filed, the Company may postpone the date on which such Registration Statement is declared effective until the second Trading Day following the date on which such annual report on Form 10-K is filed (but in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to later than the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutivesecond Trading Day following the applicable 10-K Filing Deadline) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), of the circumstances in clause (A) or (B) being an “Allowed Delay”). Upon disclosure of such information or ; provided, that in the termination case of the condition circumstances described abovein either of the foregoing clauses (A) or (B), the Company shall provide prompt notice promptly (a) notify each Holder in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Holder) disclose to holders whose Registrable Securities are included such Holder any material non-public information giving rise to an Allowed Delay, (b) advise the Holders in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension as practicable and (d) immediately notify the Holders upon the termination or lapse of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebythe Allowed Delay.
Appears in 1 contract
Sources: Registration Rights Agreement (RMG Networks Holding Corp)
Effectiveness. (ia) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail Email as promptly as practicable, and in any event, within forty-eight (48) 24 hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously if requested in writing by the Purchaser provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities Registrable Securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC Commission prior to the 120th day earlier of (i) five Business Days after the Closing Commission shall have informed the Company that no review of the Registration Statement will be made or that the Commission has no further comments on the Registration Statement; or (ii) immediately after the Trigger Date (or the 150th day if the SEC Commission reviews such the Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SECCommission (the “Effectiveness Deadline”), sales cannot be made continuously pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding each such event shall constitute a “Default” for purposes hereof, provided that a Purchaser has submitted a written notice of Default to the Company with respect to such Purchaser. In the event that a Default occurs, then, in addition to any Allowed Delay (as defined below) orother rights the Purchasers may have hereunder or under applicable law, if the Registration Statement is commencing on Form F-1, for a period of twenty (20) days following the date the Default first occurred, and on which each one month anniversary thereafter until the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F applicable Default is cured (each, a “Maintenance FailureDefault Payment Date”), then, at the election of each Investor, the Company will make pro rata payments shall pay to each electing Investor then holding Registrable SecuritiesPurchaser who request in writing to the Company (the Liquidated Damages Notice”) provided such notice is provided to the Company within three days of the Default Payment Date an amount in cash, as liquidated damages and not as a penaltypenalty (“Liquidated Damages”), in an amount equal to 11.0% of the aggregate amount purchase price paid pursuant to by such Purchaser for Notes and Warrants under the Securities Purchase Agreement by such Investor for such any Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following Purchaser on the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefDefault Payment Date. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments parties hereto agree that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders the aggregate amount of Registrable Securities be suspended from selling Registrable Securities pursuant Liquidated Damages payable to the Registration Statement for a period that exceeds 120 calendar days (which need not Purchasers exceed, in the aggregate, 25%for all Purchasers to be consecutive) in any 360paid pro-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure rata according to their aggregate investment amount to the Purchasers who have properly submitted the Liquidated Damages Notice For avoidance of such information or the termination of the condition described above, doubt the Company shall provide prompt notice not be liable for more than a total of 25% pursuant to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebythis Section.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-electronic mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously promptly thereafter provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date Date, or (or y) a Registration Statement covering the 150th day if Registrable Securities is not declared effective by the SEC reviews within one hundred twenty (120) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(iii) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Purchaser to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such Registrable Securities then held the first thirty (30) day period, and an amount equal to 1.0% of the aggregate amount invested by such Investor for each subsequent thirty (30-) day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers in writing of the existence of (but in no event, without the prior written consent of an Purchaser, shall the Company disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration StatementStatement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable.
(iii) Notwithstanding anything herein to the contrary, and shall promptly terminate in no event will the Company be obligated to make payments to any suspension Purchaser under Section 2(a)(ii) or Section 2(c)(i) in excess of sales it has put into effect and shall take 10% of the aggregate amount invested by such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyPurchaser.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day within ninety (90) days after the Closing Date Date, or (or the 150th day if y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within ninety (90) days following the time such Registration Statement) (the “Effectiveness Deadline”Statement was required to be filed pursuant to Section 2(a)(ii), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ exclusive monetary remedy for such events events. For the avoidance of doubt and shall as an example only, in the event that a Registration Statement covering US$100,000 of Ordinary Shares is declared effective three days after a deadline imposed in this Section 2(c)(i), the Company would be liable for liquidated damages in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right amount of the Investors to seek injunctive reliefUS$100.00. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicablepossible after filing. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within 120 days following the Closing Date, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within four (4) months following demand of the Required Holders relating to the 120th day after Additional Registrable Securities to be covered thereby (each of the Closing Date (or the 150th day if the SEC reviews such foregoing deadlines, a “Registration Statement) (the “Effectiveness DeadlineDate”), or (B) except as may be provided in subparagraph (c)(iii) below for an Allowed Delay, after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement) but except as excused pursuant to subparagraph (iii) below, then the Company will issue to the Purchaser, as liquidated damages and not as a penalty, 1,333 shares of Common Stock per Unit purchased by the Purchaser for each 30 day calendar period during which any of the events described in (A) or (B) above occurs and is continuing (the “Blackout Period”), but excluding any Allowed Delay . Each such issuance shall be made within five (as defined below5) or, if days of the end of each month of the Blackout Period until the termination of the Blackout Period. The Blackout Period shall terminate upon the effectiveness of the applicable Registration Statement in the case of (A) and (B) above.
(ii) In the event that the Registrable Securities (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, the Nasdaq Small-Cap Market, the Nasdaq OTC Bulletin Board, the New York Stock Exchange, the American Stock Exchange or otherwise publicly traded or trading of the Common Stock is on Form F-1suspended or halted thereon, for a period of within twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the CompanyPurchaser’s Annual Report on Form 20-F (a “Maintenance Failure”)written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then, at the election of each Investor, then the Company will make pro pro-rata payments to each electing Investor then holding Registrable Securities, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 12% of the sum of the aggregate principal amount paid pursuant to then outstanding under the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor Notes for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which such Registration Statement should have been effective any of the events described above occurs and is continuing (the “Blackout Noncompliance Period”). For each Investor that elects to receive liquidated damages, Each such payments shall constitute such Investors’ exclusive monetary remedy for such events and payment shall be in addition to any other rights the Investors may have hereunder or under applicable law due and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than within five (5) Business Days after days of the end of each such 30-day period following the commencement month (or ending portion thereof) of the Blackout Period until the termination of the Blackout Noncompliance Period. Such payments The Noncompliance Period shall be made to each electing Investor in cash. Interest shall accrue at terminate upon (1) listing or inclusion and/or trading of the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in on a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend public market or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, exchange in the case of (A) above; and (2) delivery of such shares in the Prospectus case of (B) above.
(iii) For not more than twenty (20) consecutive trading days or for a total of not more than forty-five (45) trading days in light of the circumstances under which they were madeany consecutive twelve (12) month period, not misleading or (Z) the Company has experienced or is experiencing some other may delay the disclosure of material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers in writing of the existence of (but in no event, without the prior written consent of a Purchaser, shall the Company disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay. No payments under subparagraph (c)(i) shall be required in the Registration Statement, event and shall promptly terminate any suspension for the duration of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyan Allowed Delay.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement (ii) the 60th day after the Closing Date (or the 150th day if Registration Statement is first filed with the SEC reviews and (iii) December 31, 2007, or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC within ninety (90) days following the time such Registration Statement) (the “Effectiveness Deadline”Statement was required to be filed pursuant to Section 2(a)(ii), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Alanco Technologies Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day within ninety (90) days after the Closing Date Date, or (or the 150th day if y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews such Registration Statementwithin ninety (90) (days following the “Effectiveness Deadline”)demand of an Investor relating to the Additional Shares covered thereby, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefevents. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinNo more than twice in any twelve (12) month period for an aggregate of not more than thirty (30) day, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within 120 days following the 120th day after the first Closing Date (or 150 days following the 150th day if first Closing Date in the case of a registration statement which is subject to a full SEC reviews such Registration Statementreview) (the “Effectiveness Deadline”"Registration Date"), or (B) after a the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such the Registration Statement for any reason but except as excused pursuant to subparagraph (including without limitation by reason of a stop orderii) below, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, for any 30 day period or portion thereof following the Registration Date during which any of the events described in (A) or (B) above occurs and is continuing (the "Blackout Period") in an amount equal to 12% of the aggregate amount paid pursuant to Purchase Price, as that term is defined in the Purchase Agreement Agreement, paid by such Investor to the Company on the Closing Date for such Registrable Securities then held by such Investor the first 30 days and 3% of the aggregate Purchase Price for each 30-day period subsequent 30 days or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefthereof. The amounts payable as liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States and shall be paid no later than five (5) Business Days after each such 30-day period to the Investors monthly without requiring demand therefor following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments The remedies set forth in this section are not intended to be exclusive, and shall be made in addition to each electing Investor any other remedies available at law or equity. Amounts payable as damages hereunder shall cease upon expiration of the Registration Period, as defined in cashSection 3(a) below. Interest If any amount due hereunder is not paid within ten Trading Days of its due date, the Conversion Price of the Preferred Stock shall accrue immediately and automatically adjust to $0.25. In addition, if any amount due hereunder is not paid within ten Trading Days of its due date, the Investors shall have the option of requiring the Company to redeem all or a portion of the Preferred Stock, within five days of notice of such election, at a redemption price of 125% of the rate Purchase Price, plus accrued but unpaid dividends. The duration of 1% per month on any such liquidated damages payments that shall not the MFN Period provided for in the Purchase Agreement will be paid extended by the number of days of any Blackout Payment Date until such amount is paid in fullPeriod.
(ii) Notwithstanding anything to the contrary contained herein, the The Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use effectiveness of any Registration Statement, including any Prospectus that forms registration contemplated by this Section on one occasion for a part period of a Registration Statement, not more than fifteen (15) days if the Company (X) determines that it would be required shall deliver to make disclosure the Investors a certificate signed by the President of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such timestating that, in the good faith judgment of the Board of Directors of the Company, it would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities (A) be suspended from selling Registrable Securities pursuant seriously detrimental to the Registration Statement business of the Company for a period that exceeds 120 calendar days such registration to be effected or remain effective at such time, (which need not be consecutiveB) interfere with any proposed or pending material corporate transaction involving the Company or any of its subsidiaries, or (C) result in any 360-day period (any premature disclosure thereof. In such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described abovea case, the Company shall provide prompt notice not disclose to holders whose Registrable Securities are included the Investors any facts or circumstances constituting material non-public information, without the prior written consent of Investors. The duration of the MFN Period provided for in the Registration Statement, and shall promptly terminate Purchase Agreement will be extended by the number of days of any termination or suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales the effectiveness of Registrable Securities as any registration contemplated herebyby this Section.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 180th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including including, without limitation limitation, by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay or an SEC Delay (each as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid invested by such Investor pursuant to the Purchase Financing Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii1) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus Prospectus, in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above) and (2) for not more than sixty (60) days, the Company shall provide prompt notice may suspend the use of any Prospectus included in a Registration Statement on Form S-1 contemplated by this Section in order to holders whose include therein the Company’s financial statements for the fiscal year ended January 31, 2014 (the “2014 Fiscal Year”) if and only if (I) the Company files a Registration Statement or amendment to a Registration Statement covering the Registrable Securities are included within one hundred twenty (120) days after the end of the 2014 Fiscal Year and (II) the SEC notifies the Company that it will provide comments in respect of such filing (an “SEC Delay”); provided, that in each such case the Company shall promptly (x) notify each Investor in writing of the commencement of an Allowed Delay or SEC Delay, but shall not (without the prior written consent of an Investor) disclose to such Investor any material non-public information giving rise to such Allowed Delay or SEC Delay, (y) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of such Allowed Delay or SEC Delay and shall (z) use commercially reasonable efforts to terminate such Allowed Delay or SEC Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Lakeland Industries Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously within two Business Days of the effective date provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(w) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the 120th earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement, (ii) the 60th day after the Closing Date initial filing of the Registration Statement with the SEC (or the 150th 90th day if the SEC reviews such the Registration Statement) or (iii) the 90th day after the First Closing Date (the “Effectiveness Deadline”120th day if the SEC reviews the Registration Statement), (x) a Registration Statement covering the Remaining Registrable Securities is not declared effective by the SEC prior to the earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement, (ii) the 60th day after the initial filing of the Registration Statement with the SEC (the 90th day if the SEC reviews the Registration Statement) or (iii) the 90th day after the Second Closing Date (the 120th day if the SEC reviews the Registration Statement), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(iii), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Ibis Technology Corp)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hoursone Business Day, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related the Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if .
(ii) If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day Commission within (i) one hundred fifty (150) days after the Closing Date Filing Deadline, in the event that the Registration Statement is selected for review by the Commission, or (or ii) ninety (90) days after the 150th day if Filing Deadline, in the SEC reviews such event that the Registration Statement) (Statement is not selected for review by the “Effectiveness Deadline”)Commission, or (B) after a the Registration Statement has been declared effective by the SECCommission, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 10.5% of the aggregate amount purchase price paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor the Preferred Stock for each 30-day period or pro rata for any portion thereof following (i) the date by which or on which such Registration Statement should have been filed or effective, as the case may be, or (ii) the date on which sales could not be made as set forth in (B) above, and until the date on which the Registration Statement is filed or becomes effective or regains its effectiveness, as the case may be (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, such Such payments shall be in full compensation to the Investors, and shall constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefevents. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue cash or shares of common stock, at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in fullCompany’s option.
(iiiii) Notwithstanding anything to the contrary contained hereinFor not more than forty-five (45) consecutive days or for a total of not more than ninety (90) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (a) The Parties have agreed that the Amended and Restated Shareholders Agreement shall be in effect until the occurrence of the IPO and upon occurrence of the IPO, the Amended and Restated Shareholders Agreement shall be automatically terminated in its entirety and this Agreement shall come into force and effect immediately and automatically (the "Effective Date"). As of the Effective Date, and with the automatic termination of the Amended and Restated Shareholders Agreement, the Parties hereby agree and undertake that they shall have no claims from each other in relation to or arising out of the Amended and Restated Shareholders Agreement up to and including the Effective Date. For the avoidance of doubt, Article 2.1(c) shall come into force and effect immediately upon the execution of this Agreement and Article 2.1(c) shall remain in force if the IPO does not occur by 30 September 2021.
(b) Without prejudice to Article 2.1(a), the Parties shall, as soon as possible following the execution of this Agreement, cooperate in obtaining all the relevant corporate decisions and other necessary actions to ensure that the Articles of Association of the Company is duly amended to:
(i) The Company shall use reasonable best efforts take out and delete all provisions of the Articles of Association that were inserted to have reflect the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicableAmended and Restated Shareholders Agreement, and in any event, within forty-eight (48) hours, after (x) the SEC notified with an aim to prepare the Company that it has no further comments to for the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection IPO with the sale or other disposition understanding that they will use their rights at the relevant corporate bodies of the securities covered thereby. Subject Company to Section 2(d)comply with the terms of this Agreement, if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.and
(ii) Notwithstanding anything reclassify majority of the Company shares owned by HVDB as Class A Shares and the Company shares owned by the remaining shareholders and remainder of the shares owned by HDVB as Class B Shares, whereas the Class A Shares owned by HVDB will have 15 (fifteen) voting rights per share and Class B Shares will have one vote per share.
(c) If the IPO does not occur by 30 September 2021, the Parties shall, as immediately as possible, take all corporate decisions and all other necessary actions to ensure that the Articles of Association is duly amended to:
(i) take out and delete all provisions of the Articles of Association that were inserted to prepare the Company for the IPO in accordance with Article 2.1(b);
(ii) reclassify the Company shares in the same manner as they were classified before the Articles of Association amendment set out in Article 2.1(b); and
(iii) fully reflect the provisions of the Amended and Restated Shareholders Agreement, and that accordingly the composition of the Board of Directors is restituted to its state prior to the contrary contained herein, the Company may, upon written notice to any holder Articles of Registrable Securities included Association amendment set out in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(iiArticle 2.1(b), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Shareholder Agreement (D-Market Electronic Services & Trading)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), Date; or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay or Rule 415 Cutback (each as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 1% 1.5%, of the aggregate amount purchase price paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor under the Subscription Agreement and the Note Purchase Agreement for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each The total amount of liquidated damages to be paid for such Blackout Period shall not exceed 8.0% of the aggregate purchase price paid by such Investor that elects to receive liquidated damages, such under the Subscription Agreement and the Note Purchase Agreement. Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part (A) the representative of a Registration Statement, if the underwriters of an underwritten offering of primary shares by the Company (X) determines has advised the Company that it would be required to make disclosure the offer or sale of material information in shares of Common Stock under the Registration Statement would have a material adverse effect on such underwritten offering of primary shares; (B) a majority of the independent members of the Company’s board of directors determines in good faith that (i) the offer or sale of any shares of Common Stock under the Registration Statement would materially impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving us, (ii) upon the advice of counsel, the sale of such shares pursuant to the Registration Statement would require disclosure of non-public material information not otherwise required to be disclosed under applicable law, and (iii) either (x) the Company has a bona fide business purpose for preserving as confidentialthe confidentiality of the proposed transaction or information, or (Yy) disclosure would have a material adverse effect on the Company determines or the Company’s ability to consummate the proposed transaction, in each case under circumstances that would make it must impractical or inadvisable to cause the Registration Statement (or such filings) to become effective or to promptly amend or supplement the Registration Statement on a post-effective basis, as applicable; or (C) a majority of the related Prospectus so independent members of the Company’s board of directors determines in good faith, upon the advice of counsel, that such the Company is required by law, rule or regulation, or that it is in the Company’s best interests, to supplement the Registration Statement or file a post-effective amendment to the Registration Statement in order to incorporate information into the Registration Statement for the purpose of: (i) including in the Registration Statement any prospectus required under Section 10(a)(3) of the Securities Act; (ii) reflecting in the Prospectus included in the Registration Statement any facts or events arising after the effective date of the Registration Statement in the Prospectus (or of the most-recent post-effective amendment) that, individually or in the aggregate, represents a fundamental change in the information set forth in the Prospectus; (iii) correcting any misstatement or omission in the Registration Statement or the Prospectus included therein; or (iv) including in the Prospectus included in the Registration Statement any material information with respect to the plan of distribution not disclosed in the Registration Statement or any material change to such information (an Allowed Delay); provided that the Company shall promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not include (without the prior written consent of an untrue statement of a material fact or omit Investor) disclose to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other such Investor any material non-public eventinformation giving rise to an Allowed Delay, including a pending transaction involving (b) advise the Company, the disclosure of which at such time, Investors in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Integrity Applications, Inc.)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicablereasonably practicable after filing, but in no event later than the Registration Deadline. The Company shall respond promptly to any and all comments made by the staff of the Commission on the Registration Statement, and shall submit to the Commission, with two (2) Business Days after the Company learns that no review of the Registration Statement will be made by the staff of the Commission or that the staff of the Commission has no further comments on the Registration Statement, as the case may be, a request for acceleration of the effectiveness of the Registration Statement to a time and date not later than two (2) Business Days after the submission of such request. The Company shall notify the Investors by facsimile or e-mail as promptly as reasonably practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide or make available to the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject If, subject to Section 2(d)) hereof, if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement, or (ii) the 60th day after the Closing Date Initial Filing Deadline (or the 150th 90th day if the SEC reviews such the Registration Statement) (the “Effectiveness Deadline”), or (B) after a the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including including, without limitation limitation, by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay (as defined below) orInvestor to sell the Registrable Securities covered thereby solely due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”), until such time as the Registrable Securities (giving effect to and assuming a net exercise of the Warrant by the Investor) may be sold without volume limitations pursuant to Rule 144. For each Investor that elects to receive liquidated damages, Any such payments shall constitute such Investors’ exclusive monetary remedy for such events and payment shall be in addition to any other rights remedies available to the Investors may have hereunder Investor at law or under applicable law and shall not affect in equity, whether pursuant to the right terms hereof, the Purchase Agreement, the Certificate of the Investors to seek injunctive reliefDesignation, or otherwise. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Adamis Pharmaceuticals Corp)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior within ninety (90) days following the Closing Date, or with respect to Registration Statement being subject to review by the 120th day after SEC staff, within one hundred thirty-four (134) days following the Closing Date as the case may be (or the 150th day if the SEC reviews such each, a "Registration Statement) (the “Effectiveness Deadline”Date"), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay or (as defined belowC) orthe Common Stock generally or the Registrable Securities specifically is not listed or included for quotation on the Nasdaq National Market System, if the Registration Statement is on Form F-1Nasdaq Small Cap Market, for a period of twenty (20) days following the date on which New York Stock Exchange or the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)American Stock Exchange, then, at the election of each Investor, then the Company will make pro pro-rata payments to each electing the Investor then holding Registrable Securitiesin the form of additional Common Stock, as liquidated damages and not as a penalty, in an amount equal to 12% of the aggregate amount paid pursuant by the Investor on the Closing Date to the Purchase Agreement by such Investor Company for such Registrable Securities then held by such Investor for each 30-day period any month or pro rata for any portion thereof following the date by Registration Date during which such any of the events described in (A) or (B) or (C) above occurs and is continuing (the "Blackout Period"). The Blackout Period shall terminate upon (x) the effectiveness of the applicable Registration Statement should have been effective in the case of (A) and (B) above; (y) listing or inclusion of the “Blackout Period”Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange in the case of (C) above; and (z) in the case of the events described in (A) or (B) or (C) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). For each If the Blackout Period should continue for three (3) months, then, at the option of the Investor, the Company shall issue to the Investor Warrants to purchase a number of shares equal to 20% of the number of shares of Common Stock then owned by the Investor, at an exercise price equal to the lesser of the then Market Price (as that elects term is defined in the Purchase Agreement) and the applicable Warrant Price (as that term is defined in the Warrants) and otherwise in form and substance as the Warrants issued pursuant to receive liquidated damages, such payments the Purchase Agreement. The Warrant issuance shall constitute such Investors’ not be exclusive monetary remedy for such events and shall be in addition to of any other rights the Investors may have hereunder remedies available at law or under applicable law and shall not affect the right of the Investors to seek injunctive reliefin equity. The amounts payable as liquidated damages pursuant to this paragraph shall be payable, at the option of the Company, in lawful money of the United States or in shares of Common Stock at the Market Price (as that term is defined in the Purchase Agreement), and amounts payable as liquidated damages shall be paid no later than five (5) Business Days after monthly on the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such Amounts payable as liquidated damages payments that hereunder shall not be paid by the Blackout Payment Date until such amount is paid in fullcease when an Investor no longer holds Warrants or Registrable Securities, or Additional Registrable Securities, as applicable.
(ii) Notwithstanding anything For not more than thirty (30) consecutive trading days (or not more than forty five (45) consecutive trading days if the event giving rise thereto is an acquisition valued at in excess of $10,000,000 and the consummation of which is required to the contrary contained hereinbe reported in a Current Report on Form 8-K pursuant to Item 2 thereof), or for a total of not more than sixty (60) trading days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section containing such information, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Investor in writing of the existence of (but in no event event, without the prior written consent of the Investor, shall holders the Company disclose to the Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investor in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Boston Life Sciences Inc /De)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors SuperCom by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously promptly provide the Investors SuperCom with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) ten (10) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date (earlier of the Filing Deadline or the 150th day if filing of the Registration Statement (provided that SuperCom did not delay the declaration of the Registration Statement as effective), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within one-hundred and twenty (120) days following the time such Registration Statement) (Statement was required to be filed pursuant to Section 2(a)(ii); except, in each case, due solely to SuperCom’s failure to provide the “Effectiveness Deadline”)necessary information requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, including, without limitation, information required under Regulation S-X, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay the inability of SuperCom to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined e) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesSuperCom, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor Liquidated Damages for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefeffective. The amounts payable as liquidated damages Liquidated Damages pursuant to this paragraph shall be paid no later than five payable within three (53) Business Days after each at the end of such successive 30-day period following (or portion thereof); provided, however, that in no event shall such Liquidated Damages in the commencement aggregate exceed 10% of such aggregate consideration received by SuperCom pursuant to the Blackout Period until the termination of the Blackout PeriodPurchase Agreement. Such payments shall be made to each electing Investor SuperCom in cash. Interest shall accrue at In recognition of the rate difficulty of 1% per month on any such liquidated determining SuperCom’s damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder or loss as a result of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that not being declared effective within the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition time periods described above, it is hereby agreed that the Company shall provide prompt notice foregoing amount of Liquidated Damages is deemed to holders whose Registrable Securities are included in the Registration Statement, represent a reasonable estimate of SuperCom’s damages and shall promptly terminate any suspension be the sole monetary remedy of sales it has put into effect and SuperCom in this regard, but shall take such other reasonable actions not affect the right of SuperCom to permit registered sales of Registrable Securities as contemplated herebyseek injunctive relief.
Appears in 1 contract
Sources: Asset Purchase Agreement (On Track Innovations LTD)
Effectiveness. (a) This Agreement shall become effective on the date (the "Restatement Effective Date") on which (i) The Company each Borrower, the Agent and each of the Lenders shall use reasonable best efforts to have signed a counterpart hereof (whether the Registration Statements declared effective as soon as practicable. The Company same or different counterparts) and shall notify have delivered the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments same to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, Agent at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinNotice Office or, in the case of the Prospectus Lenders, shall have given to the Agent telephonic (confirmed in light writing), written or telex notice (actually received) at such office that the same has been signed and mailed to it and (ii) the conditions set forth in Section 5 are met to the reasonable satisfaction of the circumstances under which they were madeAgent and the Required Lenders. Unless the Agent has received actual notice from any Lender that the conditions contained in Section 5 have not been met to its reasonable satisfaction, not misleading or (Z) upon the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination satisfaction of the condition described abovein clause (i) of the immediately preceding sentence and upon the Agent's good faith determination that the conditions described in clause (ii) of the immediately preceding sentence have been met, then the Restatement Effective Date shall have been deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Restatement Effective Date shall not release any Borrower from any liability for failure to satisfy one or more of the applicable conditions contained in Section 5). The Agent will give each Borrower and each Lender prompt written notice of the occurrence of the Restatement Effective Date.
(b) On the Restatement Effective Date, each New Lender and each Continuing Lender shall have delivered to the Agent for the account of the respective Borrower an amount equal to (i) in the case of each New Lender, the Company shall provide prompt notice Revolving Loans to holders whose Registrable Securities are included be made by such New Lender on the Restatement Effective Date and (ii) in the Registration Statementcase of each Continuing Lender, the amount by which the principal amount of Revolving Loans to be made by such Continuing Lender on the Restatement Effective Date exceeds the amount of the Existing Loans of such Continuing Lender outstanding on the Restatement Effective Date. Notwithstanding anything to the contrary con- tained in this Section 13.10(b), in satisfying the foregoing condition, unless the Agent shall have been notified by any Lender prior to the occurrence of the Restatement Effective Date that such Lender does not intend to make available to the Agent such Lender's Revolving Loans required to be made by it on such date, then the Agent may in reliance on such assumption, make available to the respective Borrower the corresponding amounts in accordance with the provisions of Section 1.04, and the making available by the Agent of such amounts shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebysatisfy the condition in this Section 12.10(b).
Appears in 1 contract
Sources: Credit Agreement (Neff Corp)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement and the SEC informs the Company that no review of any pending Confidential Treatment Requests will be made or that the SEC has granted any pending Confidential Treatment Requests or (ii) the 30th day after the Closing Date Filing Deadline (or the 150th 90th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), ) or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day thirty (30)-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under such Registration Statement until the Registration Statement, end of the Allowed Delay and shall (c) use reasonable best efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (MeiraGTx Holdings PLC)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day within ninety (90) days after the Closing Date Date, or (or the 150th day if y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews such Registration Statementwithin ninety (90) (days following the “Effectiveness Deadline”)demand of an Investor relating to the Additional Shares covered thereby, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ ' exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefevents. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than thirty (30)consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Companybest interests of the Company (an "Allowed Delay"); provided, however, that the Company shall promptly (a)notify the Investors in writing of the existence of (but in no event event, without the prior written consent of an Investor, shall holders the Company disclose to such Investor any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Investors in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day within ninety (90) days after the Closing Date (or the 150th day one hundred twenty (120) days if the Registration Statement is subject to full review by the SEC reviews such Registration Statement) staff (the “Effectiveness Deadline”which shall not include a "plain English" review), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement), but excluding any Allowed Delay except as excused pursuant to Section 2(d) below, or (as defined belowC) orthe Common Stock generally or the Registrable Securities specifically are not listed or included for quotation on the Nasdaq National Market System, if the Registration Statement is on Form F-1Nasdaq Small Cap Market, for a period of twenty (20) days following the date on which New York Stock Exchange or the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)American Stock Exchange, then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor on the Closing Date to the Company for such Registrable Securities then shares of Common Stock still held by such Investor for each any 30-day period or pro rata for any portion thereof following the date by which such a Registration Statement should have been effective as described in (A) or (B) or (C) above (the “"Blackout Period”"). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Investors and shall not constitute such the Investors’ ' exclusive monetary remedy for such events and events. The Blackout Period shall be in addition to any other rights terminate upon (x) the Investors may have hereunder or under applicable law and shall not affect the right effectiveness of the Investors to seek injunctive reliefapplicable Registration Statement in the case of (A) and (B) above; (y) listing or inclusion of the Common Stock on the Nasdaq National Market System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American Stock Exchange in the case of (C) above; and (z) in the case of the events described in (A) or (B) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be payable in lawful money of the United States, and amounts payable as liquidated damages shall be paid no later than five monthly within two (52) Business Days after business days of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such Amounts payable as liquidated damages payments that hereunder shall not be paid by the Blackout Payment Date until such amount is paid in fullcease when an Investor no longer holds Warrants or Registrable Securities, as applicable.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicablepossible after filing. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48A) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to within three (3) months following the 120th day after the Closing Filing Date (or within 30 days of the 150th day if Filing Date in the event the SEC reviews such does not review the Registration Statement), or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within three (3) months following demand of a Purchaser relating to the Additional Registrable Securities to be covered thereby (each of the foregoing deadlines, a “Effectiveness DeadlineRegistration Date”), or (B) except as maybe provided in subparagraph (c)(ii) below for an Allowed Delay, after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement)) but except as excused pursuant to subparagraph (ii) below, but excluding any Allowed Delay (as defined belowC) orthe Registrable Securities (or Additional Registrable Securities after issuance and registration) specifically are not listed or included for quotation on the Nasdaq National Market System, if the Registration Statement Nasdaq Small-Cap Market, the New York Stock Exchange or the American Stock Exchange (each an “Approved Market”) or trading of the Common Stock is on Form F-1suspended or halted thereon, for a period or (D) the Company fails, refuses or is otherwise unable to timely issue Underlying Shares upon conversion of the Notes or Warrant Shares upon exercise of the Warrants, in accordance with the terms of the Notes and Warrants, in each case within twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the CompanyPurchaser’s Annual Report on Form 20-F (a “Maintenance Failure”)written demand for issuance of such Underlying Shares or Warrant Shares or certificates, then, at the election of each Investor, then the Company will make pro pro-rata payments to each electing Investor then holding Registrable Securities, the Purchaser as liquidated damages and not as a penalty, in an amount equal to 12% of the sum of the aggregate principal amount paid pursuant to then outstanding under the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor Notes for each 30-day period month (or pro rata for any portion thereof thereof) following the date by Registration Date during which such Registration Statement should have been effective any of the events described in (A), (B), (C) or (D) above occurs and is continuing (the “Blackout Period”). For each Investor that elects to receive liquidated damages, Each such payments shall constitute such Investors’ exclusive monetary remedy for such events and payment shall be in addition to any other rights the Investors may have hereunder or under applicable law due and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than within five (5) Business Days after days of the end of each such 30-day period following the commencement month (or ending portion thereof) of the Blackout Period until the termination of the Blackout Period. Such payments The Blackout Period shall be made to each electing Investor terminate upon (x) the effectiveness of the applicable Registration Statement in cash. Interest shall accrue at the rate case of 1% per month (A) and (B) above; (y) listing or inclusion and/or trading of the Registrable Securities on any an Approved Market in the case of (C) above; and (z) delivery of such liquidated damages payments that shall not be paid by shares in the Blackout Payment Date until such amount is paid in fullcase of (D) above.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than ten (10) consecutive trading days or for a total of not more than thirty (30) trading days in any consecutive twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers in writing of the existence of (but in no event, without the prior written consent of a Purchaser, shall the Company disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchasers in writing to cease all sales under the Registration Statement until the end of the Allowed Delay. No payments under subparagraph (c)(i) shall be required in the Registration Statement, event and shall promptly terminate any suspension for the duration of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyan Allowed Delay.
Appears in 1 contract
Effectiveness. (i) The Company shall will use its commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the such Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior Commission within 60 days of the File Date, provided, however, that the Company will not be obligated to effect such a registration under the Securities Act if the Company furnishes to the 120th day after holders of the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay Registrable Stock (as defined belowabove) or, if a certificate signed by the Registration Statement is on Form F-1, for a period President of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor stating that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company's Board of Directors, (i) the offering would adversely affect interfere in any material respect with any financing, acquisition, corporate reorganization or other material transaction under consideration by the Company or (ii) there is some other material development relating to the condition (financial or other) of the Company that has not been disclosed to the general public and as to which it is in the Company's best interests and lawful not to disclose such development, it being hereby acknowledged and agreed by the Investors that transmittal of such information pursuant to either (i) or (ii) of this paragraph will be kept confidential by the Investors and may prevent the Investors from trading in Company securities while such information has not been publicly disclosed by the Company; provided, however, in no event shall provided that the aggregate period of delay under this paragraph may not exceed 60 days unless the holders of a majority of the Registrable Securities be suspended from selling Registrable Securities pursuant Stock consent in writing to a longer delay. If the Registration Statement for a period has not been declared effective by the Commission on or before the date that exceeds is 120 calendar days after the Closing Date (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(iithe "Required Effective Date"), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice shall, on the 121st day and each 30th day thereafter, make a payment to holders whose Registrable Securities are included in the Investors as partial compensation for such delay (the "Late Registration Payments") equal to 2% of the Offering Price paid by each of the Investors for the Shares, and not previously sold by the Investor, until the Registration Statement is declared effective by the Commission. The Late Registration Payments will be prorated on a daily basis during each 30 day period and will be paid to each Investor by wire transfer or check within 5 business days after the earlier of (i) the end of each 30 day period following the Required Effective Date or (ii) the effective date of the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement, any post effective amendment thereto and any Shelf Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement or post effective amendment is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day within ninety (90) days after the Closing Date (or the 150th day 120 days if the SEC reviews such the Registration Statement) (the “Effectiveness Deadline”), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC within ninety (90) days following the time such Registration Statement was required to be filed pursuant to Section 2(a)(ii) (120 days if the SEC reviews the Registration Statement), or (z) a Shelf Registration Statement is not declared effective by the SEC within 90 days after the Qualification Deadline (120 days if the SEC reviews the Shelf Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions, its demand and receipt of material, non-public information pursuant to Section 4 herein, and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall be in partial compensation to the Investors, and shall not constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive reliefevents. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure ; provided, however, that so long as the Registration Statement is on Form SB-2 or on any other form that does not allow for incorporation by reference of such information reports and other materials filed by the Company pursuant to Section 13(a) or the termination 15(d) of the condition described 1934 Act, the Company may upon written notice to the Investors suspend sales under the Registration Statement to the extent, but in any such case only to the extent, necessary to allow any post-effective amendment to the Registration Statement or supplement to the Prospectus to be prepared and filed with the SEC and, if necessary, declared effective (and such suspension shall be deemed to be an Allowed Delay without regard to the time periods mentioned above) for the period commencing at the time that the Company disseminates a press release announcing its preliminary financial results for any fiscal period or announcing a material development and ending on the second Business Day after the earlier of (A) the date that the related report on Form 10-KSB, 10-QSB or 8-K, as applicable, is filed with the SEC and (B) the date on which such report is required to be filed under the 1934 Act (without regard to Rule 12b-25 promulgated thereunder); provided, further, that in the event the Company determines in good faith, based on the advice of counsel, that the matters disclosed in such press release require the filing of a post-effective amendment to the Registration Statement, the Company shall provide prompt notice file such post-effective amendment promptly and in no event later than ten (10) Business Days after the date such matters are first disclosed to holders whose Registrable Securities are included in the public and shall use commercially reasonable efforts to have such post-effective amendment to the Registration StatementStatement declared effective as promptly as practicable and the period for which the Company may suspend the use of the Registration Statement shall be extended to the earliest to occur of (W) the date the post-effective amendment to the Registration Statement is withdrawn by the Company, and (X) the date such post-effective amendment to the Registration Statement is declared effective by the SEC, (Y) the second Business Day after the SEC has notified the Company that either (I) it has elected not to review the post-effective amendment to the Registration Statement or (II) it has no further comments on the post-effective amendment to the Registration Statement or (Z) 45 days after the initial filing of the post-effective amendment to the Registration Statement with the SEC.
(iii) The Company shall promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities an Allowed Delay as contemplated herebypromptly as practicable.
Appears in 1 contract
Sources: Registration Rights Agreement (Primal Solutions Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), date hereof or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement)) or the inability of any Purchaser to sell the Registrable Securities covered thereby due to market conditions, but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor Purchaser for such Registrable Securities then held by such Investor for each the first 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective and 1.5% of the aggregate amount invested by such Purchaser for each 30-day period thereafter or pro rata for any portion thereof for which such Registration Statement should have been effective (the “Blackout Period”); provided, that the maximum payments to the Purchasers pursuant to this Section 2(c) shall not exceed 18.0% of the aggregate amount invested by such Purchaser. For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (True Drinks Holdings, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicablereasonably practicable after the filing thereof. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement and (ii) the 90th day after the Closing Initiation Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1S-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 2010-F K (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, (i) the Company shall not be required to file a Registration Statement (or any amendment thereto) or, if a Registration Statement has been filed but not declared effective by the SEC, request effectiveness of such Registration Statement, for a period of up to forty-five (45) days, if (A) the Company determines in good faith that a postponement is in the best interest of the Company and its stockholders generally due to a pending transaction involving the Company (including a pending securities offering by the Company, or any proposed financing, acquisition, merger, tender offer, business combination, corporate reorganization, consolidation or other significant transaction involving the Company), (B) the Company determines such registration would render the Company unable to comply with applicable securities laws, (C) the Company determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (D) audited financial statements as of a date other than the fiscal year end of the Company would be required to be prepared; and (ii) the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) 30 consecutive Trading Days or 60 total Trading Days in any 360180-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Rafael Holdings, Inc.)
Effectiveness. (i) The Company shall use its reasonable best efforts to have the Initial Registration Statements Statement and any amendment declared effective as soon as practicableby the SEC at the earliest possible date but no later than the earlier of (a) the 75th calendar day following the initial filing date of the Initial Registration Statement if the SEC notifies the Company that it will “review” the Initial Registration Statement and (b) the fifth Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Initial Registration Statement will not be “reviewed” or will not be subject to further review (the “Effectiveness Deadline”); provided, further, that if the SEC is closed for operations due to a government shutdown or lapse in appropriations, the deadline shall be extended by the same amount of days that the SEC remains closed for operations. The Company shall notify the Investors Investor by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) 24 hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective or is supplemented and shall simultaneously provide the Investors Investor with access to a copy copies of any related Prospectus prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject The Company shall use reasonable best efforts to Section 2(d), if (A) a keep the Initial Registration Statement covering continuously effective pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investors of all of the Registrable Securities is not declared effective by covered thereby at all times until the SEC prior earliest to occur of the 120th day after the Closing Date following events: (or the 150th day if the SEC reviews such Registration Statementi) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a postInvestors shall have resold all the Registrable Securities covered thereby; and (ii) the date on which the Registrable Securities may be resold by the Investors without registration and without regard to any volume or manner-effective amendment to incorporate of-sale limitations by reason of Rule 144, without the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, requirement for the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, be in an amount equal to 1% compliance with the current public information requirement under Rule 144 under the Securities Act or any other rule of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective similar effect (the “Blackout Registration Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events The Initial Registration Statement (including any amendments or supplements thereto and shall be in addition to any other rights the Investors may have hereunder or under applicable law and prospectuses contained therein) shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on contain any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein therein, or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under in which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebymisleading.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 150th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”)Date, or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Purchaser to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such Registrable Securities then held by such Investor Purchaser for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Purchaser in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of a Purchaser) disclose to holders whose Registrable Securities are included such Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (GreenHunter Resources, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or (ii) the 90th day after the Closing Date (or the 150th 120th day if the Registration Statement is reviewed by the SEC), or (y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (120 days if the “Effectiveness Deadline”Registration Statement is reviewed by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Investor to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Investors in writing of the existence of (but in no event, without the prior written consent of an Investor, shall the Company disclose to holders whose Registrable Securities are included such Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earliest of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement, (ii) July 16, 2006 or (iii) the 120th day after the Closing Date (or the 150th day if the Registration Statement is reviewed by the SEC, (y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews within ninety (90) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(ii) (120 days if such Registration Statement is reviewed by the “Effectiveness Deadline”SEC) or (z) a Shelf Registration Statement is not declared effective by the SEC within ninety (90) days after the Qualification Deadline (120 days if such Registration Statement is reviewed by the SEC), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Investor to sell the Registrable Securities covered thereby due to (X) market conditions or its receipt of material nonpublic information at its request in accordance with Section 4 hereof or (Y) an Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securitiesthe ▇▇▇▇▇▇▇ Investor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant to invested by the Purchase Agreement by such Investor for such Registrable Securities then held by such ▇▇▇▇▇▇▇ Investor for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investors’ the ▇▇▇▇▇▇▇ Investor’s exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors ▇▇▇▇▇▇▇ Investor to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing the ▇▇▇▇▇▇▇ Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or ; provided, that (i) the termination Company shall promptly (a) notify the Investors in writing of the condition described aboveexistence of (but in no event, without the prior written consent of the ▇▇▇▇▇▇▇ Investor, shall the Company disclose to the ▇▇▇▇▇▇▇ Investor any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable and (ii) so long as the Registration Statement is on Form SB-2 or on any other form that does not allow for incorporation by reference of reports and other materials filed by the Company pursuant to Section 13(a) or 15(d) of the 1934 Act, the Company shall provide prompt may upon written notice to holders whose Registrable Securities are included in the Investors suspend sales under the Registration StatementStatement for not more than ten (10) days to the extent, but in any such case only to the extent, necessary to allow any post-effective amendment to the Registration Statement or supplement to the Prospectus to be prepared and filed with the SEC and, if necessary, declared effective (and such suspension shall promptly terminate be deemed to be an Allowed Delay without regard to the time periods mentioned above) for the period (not to exceed ten (10) days) commencing at the time that the Company disseminates a press release announcing its preliminary financial results for any suspension fiscal period or announcing a material development and ending on the second Business Day after the earlier of sales it has put into effect (A) the date that the related report on Form 10-KSB, 10-QSB or 8-K, as applicable, is filed with the SEC and shall take (B) the date on which such other reasonable actions report is required to permit registered sales of Registrable Securities as contemplated herebybe filed under the 1934 Act (without regard to Rule 12b-25 promulgated thereunder).
Appears in 1 contract
Sources: Registration Rights Agreement (Primal Solutions Inc)
Effectiveness. (i) The Company shall use reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) 10 Trading Days (as defined below) after the SEC shall have informed the Company that no review of the Registration Statement will be made or (ii) the 90th day after the Subsequent Closing Date (or the 150th 135th day if the Registration Statement is reviewed by the SEC), (B) the Company fails to file with the SEC reviews a request for acceleration of a Registration Statement in accordance with Rule 461 promulgated under the 1933 Act, within four Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration StatementStatement will not be “reviewed” or not be subject to further review, (C) (prior to the “Effectiveness Deadline”)date that the Registration Statement is declared effective, the Company fails to file a pre-effective amendment and otherwise respond in writing to comments made by the SEC in respect of such Registration Statement within 20 Trading Days after the receipt of comments by or notice from the SEC that such amendment is required in order for such Registration Statement to be declared effective, or (BD) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay the inability of Crestview to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesCrestview, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor $10,000 for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects ) up to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition a maximum amount equal to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period$100,000. Such payments shall be made to each electing Investor Crestview in cash. Interest shall accrue at For purposes of this Section 9, “Trading Day(s)” means (a) a day on which the rate of 1% per month Common Stock is traded on any the OTC Bulletin Board, or (b) if the Common Stock is then traded on a registered national stock exchange, a day on which the Common Stock is traded on such liquidated damages payments that shall registered national stock exchange, or (c) if the Common Stock is not be paid traded on the OTC Bulletin Board or a registered national stock exchange, a day on which the Common Stock is quoted in the over the counter market as reported by the Blackout Payment Date until such amount National Quotation Bureau Incorporated (or any similar organization or agency succeeding its functions of reporting prices); provided, however, that in the event that the Common Stock is paid not listed or quoted as set forth in full(a), (b) or (c) hereof, then Trading Day shall mean any day except Saturday, Sunday and any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus (as defined below) included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section 9 containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify Crestview in writing of the existence of (but in no event, without the prior written consent of Crestview, shall the Company disclose to holders whose Registrable Securities are Crestview any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise Crestview in writing to cease all sales under the Registration Statement until the end of the Allowed Delay and (c) use reasonable best efforts to terminate an Allowed Delay as promptly as practicable. For purposes of this Section 9, “Prospectus” means the prospectus included in the any Registration Statement, and shall promptly terminate as amended or supplemented by any suspension prospectus supplement, with respect to the terms of sales it has put into effect and shall take such other reasonable actions to permit registered sales the offering of any portion of the Registrable Securities as contemplated herebycovered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated or deemed incorporated by reference in such prospectus.
Appears in 1 contract
Sources: Bridge Loan and Debt Restructuring Agreement (Golden Phoenix Minerals Inc)
Effectiveness. (ia) The Company This Agreement shall use reasonable best efforts to become effective on the date (the "Restatement Effective Date") on which all of the parties hereto shall have signed a copy hereof (whether the Registration Statements declared effective as soon as practicable. The Company same or different copies) and shall notify have delivered the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments same to the Registration Statement and (y) any Registration Statement is declared effectiveAdministrative Agent at its Notice Office or, and shall simultaneously provide in the Investors with access to a copy of any related Prospectus to be used in connection with the sale or other disposition case of the securities covered thereby. Subject Banks, shall have given to Section 2(dthe Administrative Agent telephonic notice (confirmed in writing), if written or facsimile transmission notice (Aactually received) a Registration Statement covering in accordance with Section 12.03 at such office that the Registrable Securities is not declared effective by same has been signed and mailed to it.
(b) On the SEC prior Restatement Effective Date, each New Bank and each Continuing Bank shall have delivered to the 120th day after Administrative Agent for the Closing Date (or account of the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in Borrower an amount equal to 1% (i) in the case of each New Bank, the aggregate amount paid pursuant Loans to the Purchase Agreement be made by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following New Bank on the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events Restatement Effective Date and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) in the case of each Continuing Bank, the amount by which the principal amount of Loans to be made and/or converted by such Continuing Bank on the Restatement Effective Date exceeds the amount of the Existing Loans of such Continuing Bank outstanding on the Restatement Effective Date. Notwithstanding anything to the contrary contained hereinin this Section 12.10(b), in satisfying the Company mayforegoing condition, upon written notice unless the Administrative Agent shall have been notified by any Bank prior to any holder the occurrence of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus Restatement Effective Date that forms a part of a Registration Statement, if the Company (X) determines that it would be required such Bank does not intend to make disclosure of material information in available to the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that Administrative Agent such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact Bank's Loans required to be stated therein or necessary to make made by it on such date, then the statements thereinAdministrative Agent may, in the case of the Prospectus in light of the circumstances under which they were madereliance on such assumption, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant make available to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) Borrower the corresponding amounts in any 360-day period (any accordance with the provisions of Section 1.04, and the making available by the Administrative Agent of such suspension contemplated by amounts shall satisfy the condition contained in this Section 2(c)(ii12.10(b), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date or (or the 150th day if y) a Shelf Registration Statement is not declared effective by the SEC reviews such prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration StatementStatement will be made or that the SEC has no further comments on the Registration Statement or (ii) (the “Effectiveness 90th day after the Qualification Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement ceases for any reason to be effective and available to the Investors (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid invested by such Investor pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the Closing Date or (or the 150th day if y) a Registration Statement covering Additional Shares is not declared effective by the SEC reviews such prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration StatementStatement will be made or that the SEC has no further comments on the Registration Statement or (ii) the one hundred twentieth (120th) day after the “Effectiveness Additional Shares Filing Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including including, without limitation limitation, by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 12.0% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of and the reasons for an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate the Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Overland Storage Inc)
Effectiveness. (i) The Company shall use reasonable its best efforts to have the each Registration Statements Statement declared effective as soon as practicablepracticable after it is filed with the SEC. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within forty-eight If (48) hours, after (xA) the Company fails to file with the SEC notified a Registration Statement on or before the date by which the Company that it has no further comments is required to file the Registration Statement and pursuant to Section 2(a)(i) above, (yB) any Registration Statement is declared effective, and shall simultaneously provide the Investors with access Company fails to a copy of any related Prospectus to be used in connection file with the sale or other disposition of SEC the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering Additional Registrable Securities within 30 days following demand of the Purchaser relating to the Additional Registrable Securities to be covered thereby, (C) the Registration Statement covering Registrable Securities is not declared effective by the SEC prior by June 15, 2004, or the Registration Statement covering Additional Registrable Securities is not declared effective by the SEC within 90 days following demand of the Purchaser relating to the 120th day after the Closing Date Additional Registrable Securities to be covered thereby (or the 150th day if the SEC reviews such each, a "Registration Statement) (the “Effectiveness Deadline”Date"), or (BD) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s 's failure to update such the Registration Statement) but except as excused pursuant to subparagraph (ii) below, (E) the Common Stock generally or the Registrable Securities (or Additional Registrable Securities after issuance) specifically are not listed or included for quotation on the OTC Bulletin Board, the Nasdaq, the Nasdaq Small Cap, the NYSE or the AMEX (each an "Approved Market"), but excluding any Allowed Delay or trading of the Common Stock is suspended or halted on the Approved Market which at the time constitutes the principal market for the Common Stock, or (as defined belowF) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment fails, refuses or is otherwise unable timely to incorporate issue Underlying Shares upon conversion of the Company’s Annual Report on Form 20-F (a “Maintenance Failure”)Note or Warrant Shares upon exercise of the Warrants in accordance with the terms of the Note and the Warrants, thenor certificates therefor as required under the Transaction Documents, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, the Purchaser as partial liquidated damages for the minimum amount of damages to the Purchaser by reason thereof, and not as a penalty, at the rate of (1) $55,000 for the first 30 day period, and (2) $110,000 for the each 30 day period thereafter (in an amount equal to 1% either case, pro rated for any period less than 30 days), during which any of the aggregate amount paid pursuant events described in clause (A), (B), (C), (D), (E) or (F) above occurs and is continuing (the "Blackout Period"). Each such payment shall be due and payable within five (5) days after the end of each calendar month of the Blackout Period until the termination of the Blackout Period and within five (5) days after such termination. Such payments shall be in partial compensation to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following Purchaser, and shall not constitute the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ Purchaser's exclusive monetary remedy for such events and events. The Blackout Period shall be in addition to any other rights terminate upon (v) the Investors may have hereunder or under applicable law and shall not affect the right filing of the Investors to seek injunctive reliefapplicable Registration Statement in the case of clauses (A) and (B) above; (w) the effectiveness of the applicable Registration Statement in the case of clauses (C) and (D) above; (x) listing or inclusion and/or trading of the Common Stock on an Approved Market, as the case may be, in the case of clause (E) above; (y) delivery of such shares or certificates in the case of clause (F) above; and (z) in the case of the events described in clauses (C) or (D) above, the earlier termination of the Registration Period (as defined in Section 3(a) below). The amounts payable as liquidated damages pursuant to this paragraph shall be paid payable, at the sole option of the Purchaser, in lawful money of the United States or in shares of Common Stock valued for this purpose at the Conversion Price. Amounts payable as liquidated damages hereunder shall cease when the Purchaser no later longer holds the Note, the Warrants, Registrable Securities or Additional Registrable Securities.
(ii) For not more than five (5) Business consecutive Trading Days after each such 30-day period following the commencement or for a total of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor not more than 20 Trading Days in cash. Interest shall accrue at the rate of 1% per any consecutive 12 month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinperiod, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend may delay the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, by terminating or suspending effectiveness of any registration contemplated by this Section, the disclosure of which information at such timethe time is not, in the good faith judgment opinion of the Company, in the best interests of the Company or would adversely affect be unduly detrimental to the Company's affairs (an "Allowed Delay"); provided, however, that the Company shall promptly (a) notify the Purchaser in writing of the existence of (but in no event event, without the prior written consent of the Purchaser, shall holders the Company disclose to the Purchaser any of Registrable Securities be suspended from selling Registrable Securities pursuant the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, and (b) advise the Purchaser in writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “until the end of the Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.
Appears in 1 contract
Sources: Registration Rights Agreement (Knightsbridge Fine Wines Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-electronic mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously promptly thereafter provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date Date, or (or y) a Registration Statement covering the 150th day if Registrable Securities is not declared effective by the SEC reviews within one hundred twenty (120) days following the time such Registration StatementStatement was required to be filed pursuant to Section 2(a)(iii) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay Purchaser to sell the Registrable Securities covered thereby due to market conditions and except as excused pursuant to subparagraph (as defined ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 12.0% of the aggregate amount paid pursuant to the Purchase Agreement invested by such Investor for such Registrable Securities then held the first thirty (30) day period, and an amount equal to 1.0% of the aggregate amount invested by such Investor for each subsequent thirty (30-) day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that registration contemplated by this Section containing such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Companyinformation, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers in writing of the existence of (but in no event, without the prior written consent of an Purchaser, shall the Company disclose to holders whose Registrable Securities are included such Purchaser any of the facts or circumstances regarding) material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration StatementStatement until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable.
(iii) Notwithstanding anything herein to the contrary, and shall promptly terminate in no event will the Company be obligated to make payments to any suspension Purchaser under Section 2(a)(ii) or Section 2(c)(i) in excess of sales it has put into effect and shall take 10% of the aggregate amount invested by such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebyPurchaser.
Appears in 1 contract
Sources: Registration Rights Agreement (Senesco Technologies Inc)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the any Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 120th day after the Closing Date or (or y) a Registration Statement covering the 150th day if Additional Registrable Securities is not declared effective by the SEC reviews such prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration StatementStatement will be made or that the SEC has no further comments on the Registration Statement or (ii) (the “Effectiveness 120th day after the Additional Registrable Securities Filing Deadline”), or (B) after a Registration Statement has been declared effective by the SECSEC but before the end of the Effectiveness Period (as defined below), sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid stated value of the Series D Preferred Stock received by such Investor pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30120-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30120-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Speed Commerce, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the each Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Initial Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date (or the 150th 120th day if the SEC reviews such Registration Statement), (y) a Registration Statement covering the Remaining Registrable Securities is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Share Increase Date (the “Effectiveness Deadline”120th day if the SEC reviews such Registration Statement), or (z) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Qualification Deadline (the 120th day if the SEC reviews such Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Investor to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesInvestor, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid invested by such Investor pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Investor in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Investor) disclose to holders whose Registrable Securities are included such Investor any material non-public information giving rise to an Allowed Delay, (b) advise the Investors in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement(s) declared effective as soon as practicablepracticable (including filing with the SEC a request for acceleration of its effectiveness in accordance with Rule 461 within five (5) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the staff of the SEC that a Registration Statement will not be reviewed, or not be subject to further review), with respect to the initial SB-2 Registration Statement filed pursuant to Section 2(a) hereof, but in any event no later than November 14, 2007. The Company shall notify the Investors Purchasers or Nordic by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers or Nordic with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (A) a the SB-2 Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day earlier of five (5) Business Days after the Closing Date (or the 150th day if staff of the SEC reviews shall have informed the Company (orally or in writing, whichever is earlier) that such Registration Statement) (Statement will not be reviewed by the “Effectiveness Deadline”)staff of the SEC or not be subject to further review or November 14, 2007 or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding the inability of any Allowed Delay (Purchaser to sell the Registrable Securities covered thereby due to market conditions and except as defined excused pursuant to Section 2(e)(ii) below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of in addition to any other rights each InvestorPurchaser may have hereunder or under applicable law, the Company will make pro rata payments pay (i) an amount in cash to each electing Investor then holding Registrable SecuritiesPurchaser, as partial liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount purchase price paid for Registrable Securities by such Purchaser pursuant to the Purchase Agreement up to a maximum amount of all liquidated damages payable under this Agreement to any Purchaser of 10% of the purchase price paid for Registrable Securities by such Investor for such Registrable Securities then held by such Investor Purchaser pursuant to the Purchase Agreement and (ii) for each 30-day period or pro rata for any portion thereof following the date occurrence of an event set forth in any of (A) or (B) above an amount in cash to each Purchaser, as partial liquidated damages and not as a penalty, equal to 1.5% of the aggregate purchase price paid for Registrable Securities by which such Registration Statement should have been effective (Purchaser pursuant to the “Blackout Period”). For each Investor that elects Purchase Agreement up to receive a maximum amount of all liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition damages payable under this Agreement to any other rights the Investors may have hereunder or under applicable law and shall not affect the right Purchaser of 10% of the Investors purchase price paid for Registrable Securities by such Purchaser pursuant to seek injunctive reliefthe Purchase Agreement. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid no later than five within three (53) Business Days after of the occurrence of an event set forth in any of (A) or (B) above and monthly thereafter within three (3) Business Days of the last day of each such 30-day period month following the commencement occurrence of an event set forth in any of (A) or (B) above until such events are cured. The amounts payable as partial liquidated damages pursuant to this paragraph shall be paid within three (3) Business Days of the Blackout Period until the termination occurrence of an event set forth in any of (A) or (B) above and monthly thereafter within three (3) Business Days of the Blackout Periodlast day of each month following the occurrence of an event set forth in any of (A) or (B) above until such occurrence has been cured. If the Company fails to pay any partial liquidated damages pursuant to this section in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or such lesser amount that is permitted to be paid by applicable law) to the Purchaser, accruing daily from the date such payments are due until such amounts, plus all such interest thereon, are paid in full. Such payments shall be made to each electing Investor Purchaser in cashimmediately available cash funds. Interest For purposes of the obligations of the Company under this Agreement, except in the case of any Purchasers who elect in writing not to have its Registrable Securities included in the Registration Statement, no Registration Statement shall accrue at be considered “effective” with respect to any Registrable Securities unless such Registration Statement lists the rate Purchasers of 1% per month on any such liquidated damages payments that shall not Registrable Securities as “Selling Stockholders” and includes such other information as is required to be paid by the Blackout Payment Date until disclosed with respect to such amount is paid in fullPurchasers to permit them to sell all of their Registrable Securities pursuant to such Registration Statement.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than fifteen (15) consecutive days or for a total of not more than thirty days in any twelve (12) month period, the Company maymay delay the disclosure of material non-public information concerning the Company, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend by suspending the use of any Registration Statement, including Prospectus included in any Prospectus that forms a part of a registration contemplated by this Section or by delaying any post-effective amendment to the Form SB-2 Registration Statement, if such disclosure at the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or time is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such timenot, in the good faith judgment opinion of the Company, would adversely affect in the Company; provided, however, in no event shall holders best interests of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days Company (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Purchasers or Nordic in writing of the existence of (but in no event, without the prior written consent of a Purchaser or Nordic, shall the Company disclose to holders whose Registrable Securities are included such Purchaser or Nordic any of the facts or circumstances regarding) an Allowed Delay, (b) advise the applicable Holders in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Purchasers by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Purchasers with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the Closing Date date of the Demand Registration Request (or the 150th 120th day if the SEC reviews such the Registration Statement) or (y) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made or that the SEC has no further comments on the Registration Statement or (ii) the 90th day after the date of the delivery of a Shelf Registration Request (the “Effectiveness Deadline”120th day if the SEC reviews the Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such the Registration Statement), but excluding any Allowed Delay (as defined below) oror the inability of any Purchaser to sell the Registrable Securities covered thereby due to market conditions, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable SecuritiesPurchaser, as liquidated damages and not as a penalty, in an amount equal to 11.5% of the aggregate amount paid pursuant invested by such Purchaser allocable to the Purchase Agreement by such Investor for such Registrable Securities then held by included in such Investor Registration Statement for each 30-30- day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects Period”).[should only cover shares requested to receive liquidated damages, such be registered] Such payments shall constitute such Investorsthe Purchasers’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors Purchasers to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor Purchaser in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than ninety (90) consecutive days or for a total of not more than one hundred and eighty (180) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company, in the best interests of the Company has a bona fide business purpose for preserving as confidential, or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify each Purchaser in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of an Purchaser) disclose to holders whose Registrable Securities are included such Purchaser any material non-public information giving rise to an Allowed Delay, (b) advise the Purchasers in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Casablanca Mining Ltd.)
Effectiveness. (ia) The Company shall use reasonable commercially best efforts to have the Registration Statements Statement declared effective as soon as practicable. The Company shall notify the Investors Holder by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors Holder with access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If: (A1) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (A) five (5) Business Days after the SEC shall have informed the Company that no review of such Registration Statement will be made or that the SEC has no further comments on the Registration Statement, or (B) the 90th day after the Closing Issuance Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), ; or (B2) after a Shelf Registration Statement has been is not declared effective by the SEC, sales cannot SEC prior to the earlier of (i) five (5) Business Days after the SEC shall have informed the Company that no review of the Registration Statement will be made pursuant to such or that the SEC has no further comments on the Registration Statement for any reason (including without limitation by reason of a stop orderStatement, or (ii) the Company’s failure to update 90th day after the Issuance Date (if the SEC reviews such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments pay to each electing Investor then holding Registrable Securitiesthe Holder, as liquidated damages and not as a penalty, in an amount equal to one percent (1% %) of the aggregate unpaid Principal amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor of this Note for each 30-day period (or pro rata for any portion thereof thereof) following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments Such payment(s) shall constitute such Investors’ the Holder’s exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and failure, but shall not affect the Holder’s right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments payment(s) shall be made to each electing Investor the Holder in cash. Interest shall accrue , or at the rate option of 1% per month on any such liquidated damages payments that shall not the Holder, be paid by added to the Blackout Payment Date until such unpaid Principal amount is paid in fullof this Note, no later than three (3) Business Days after the end of each 30-day period.
(iib) Notwithstanding anything to the contrary contained hereinFor not more than twenty (20) consecutive days or for a total of not more than forty-five (45) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus Statement contemplated by this Section 5 in the event that forms a part of a Registration Statement, if the Company determines in good faith that such suspension is necessary to: (XA) determines that it would be required to make delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the Registration Statement that good faith opinion of the Company has a bona fide business purpose for preserving as confidentialCompany, in the best interests of the Company; or (YB) the Company determines it must amend or supplement the affected Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above; provided, that the Company shall provide prompt notice promptly (a) notify the Holder in writing of the commencement of an Allowed Delay, but shall not (without the prior written consent of the Holder) disclose to holders whose Registrable Securities are included such Holder any material non-public information giving rise to an Allowed Delay; (b) advise the Holder in writing to cease all sales under the Registration Statement, Statement until the end of the Allowed Delay; and shall (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Effectiveness. (i) The Company Parent shall use its commercially reasonable best efforts to have the Registration Statements Statement declared effective as soon as practicablepracticable but in no event later than the Effectiveness Deadline (including filing with the SEC a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act) (it being agreed that if the Parent is a well-known seasoned issuer as of the filing date, the Registration Statement shall be an automatic shelf registration statement, or a prospectus supplement to an effective automatic shelf registration statement, that shall become effective upon filing with the SEC pursuant to Rule 462(e)), and shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the earlier of (A) such time as all of the Registrable Securities covered by such Registration Statement have been sold by the Holders, or (B) the date that all the Shares are able to be publicly sold by the Holders by relying on Rule 144 without registration (the “Registrable Date”); provided, that, the Parent will not be obligated to update the Registration Statement and no sales may be made under the applicable Registration Statement during any Allowed Delay (as defined below) of which the Holders have received notice. The Company Parent shall notify the Investors Participating Holders of the effectiveness of a Registration Statement by facsimile or e-mail as promptly as practicable, and in any eventshall, within forty-eight (48) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, and shall simultaneously if requested provide the Investors Participating Holders with access to a copy copies of any related the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinOn not more than three occasions and for not more than sixty (60) consecutive days or for a total of not more than one hundred twenty (120) days, in each case in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, Parent may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus that forms a part Statement contemplated by this Section 2 if (A) the negotiation or consummation of a Registration Statementtransaction by the Parent is pending or an event has occurred, if which negotiation, consummation or event, the Company (X) determines that it Board reasonably believes, upon the advice of legal counsel, would be required to make require additional disclosure of material information by the Parent in the Registration Statement of material information that the Company Parent has a bona fide business purpose for preserving as confidentialkeeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of the Board, upon the advice of legal counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements, (YB) the Company Parent determines it must in good faith, upon advice of legal counsel, that such suspension if necessary to delay the disclosure of material nonpublic information concerning Parent, the disclosure of which at the time is not, in the good faith opinion of Parent, in the best interests of Parent, or (C) the Parent determines in good faith, upon advice of legal counsel, that such suspension is necessary to amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or ; provided, that the termination Parent shall promptly (1) notify each Participating Holder in writing of the condition described abovecommencement of an Allowed Delay, but shall not (without the Company shall provide prompt notice prior written consent of a Participating Holder) disclose to holders whose Registrable Securities are included such Participating Holder any material non-public information giving rise to an Allowed Delay, (2) advise the Participating Holders in writing to cease all sales under such Registration Statement until the Registration Statement, end of the Allowed Delay and shall (3) use commercially reasonable efforts to terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Weave Communications, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements declared effective as soon as practicable. The Company shall notify the Investors simultaneously by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement is declared effective, effective and shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject to Section 2(d), if If (AA)(x) a Registration Statement covering the Registrable Securities is not declared effective by the SEC prior to the 120th earlier of (i) five (5) Business Days after the SEC informs the Company that no review of such Registration Statement will be made or that the SEC has no further comments on such Registration Statement or (ii) the 60th day after the Closing Date (or the 150th 120th day if the SEC reviews such Registration Statement), or (y) a Shelf Registration Statement is not declared effective by the SEC prior to the earlier of (i) five (5) Business Days after the “Effectiveness Deadline”SEC informs the Company that no review of such Shelf Registration Statement will be made or that the SEC has no further comments on such Shelf Registration Statement or (ii) the 60th day after the Qualification Deadline (or the 120th day if the SEC reviews such Shelf Registration Statement), or (B) after a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, then the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held invested by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such Such payments shall constitute such the Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and events, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five monthly within three (53) Business Days after of the last day of each such 30-day period month following the commencement of the Blackout Period until the termination of the Blackout PeriodPeriod (the “Blackout Period Payment Date”). Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained hereinFor not more than ten (10) consecutive days or for a total of not more than thirty (30) days in any twelve (12) month period, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, may suspend the use of any Prospectus included in any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information Statement contemplated by this Section in the Registration Statement event that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or the related Prospectus so in good faith that such Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or suspension is necessary to make (A) delay the statements therein, in the case disclosure of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) the Company has experienced or is experiencing some other material non-public event, including a pending transaction involving information concerning the Company, the disclosure of which at such timethe time is not, in the good faith judgment opinion of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension best interests of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby.the
Appears in 1 contract
Sources: Registration Rights Agreement (Aclaris Therapeutics, Inc.)
Effectiveness. (i) The Company shall use commercially reasonable best efforts to have the Registration Statements Statement, any post effective amendment thereto and any Shelf Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event, within fortytwenty-eight four (4824) hours, after (x) the SEC notified the Company that it has no further comments to the Registration Statement and (y) any Registration Statement or post effective amendment is declared effectiveeffective and, and upon request, shall simultaneously provide the Investors with access to a copy copies of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. Subject .
(ii) The Company may delay the disclosure of material non-public information concerning the Company, by suspending the use of any Prospectus included in any registration contemplated by this Section containing such information, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company (an “Allowed Delay”); provided, further, that so long as the Registration Statement is on Form SB-2 or on any other form that does not allow for incorporation by reference of reports and other materials filed by the Company pursuant to Section 2(d)13(a) or 15(d) of the 1934 Act, the Company may upon written notice to the Investors suspend sales under the Registration Statement to the extent, but in any such case only to the extent, necessary to allow any post-effective amendment to the Registration Statement or supplement to the Prospectus to be prepared and filed with the SEC and, if necessary, declared effective (and such suspension shall be deemed to be an Allowed Delay) for the period commencing at the time that the Company disseminates a press release announcing its preliminary financial results for any fiscal period or announcing a material development and ending on the second Business Day after the earlier of (A) a Registration Statement covering the Registrable Securities date that the related report on Form 10-KSB, 10-QSB or 8-K, as applicable, is not declared effective by filed with the SEC prior to the 120th day after the Closing Date (or the 150th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or and (B) the date on which such report is required to be filed under the 1934 Act (without regard to Rule 12b-25 promulgated thereunder); provided, further, that in the event the Company determines in good faith, based on the advice of counsel, that the matters disclosed in such press release require the filing of a post-effective amendment to the Registration Statement, the Company shall file such post-effective amendment promptly and in no event later than ten (10) Business Days after a the date such matters are first disclosed to the public and shall use commercially reasonable efforts to have such post-effective amendment to the Registration Statement has been declared effective as promptly as practicable and the period for which the Company may suspend the use of the Registration Statement shall be extended to the earliest to occur of (W) the date the post-effective amendment to the Registration Statement is withdrawn by the Company, (X) the date such post-effective amendment to the Registration Statement is declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or Y) the Company’s failure to update such Registration Statement), but excluding any Allowed Delay (as defined below) or, if second Business Day after the Registration Statement is on Form F-1, for a period of twenty (20) days following the date on which SEC has notified the Company files a that either (I) it has elected not to review the post-effective amendment to incorporate the Company’s Annual Report on Form 20-F (a “Maintenance Failure”), then, at the election of each Investor, the Company will make pro rata payments to each electing Investor then holding Registrable Securities, as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following the date by which such Registration Statement should have been effective (the “Blackout Period”). For each Investor that elects to receive liquidated damages, such payments shall constitute such Investors’ exclusive monetary remedy for such events and shall be in addition to any other rights the Investors may have hereunder or under applicable law and shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant to this paragraph shall be paid no later than five (5) Business Days after each such 30-day period following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to each electing Investor in cash. Interest shall accrue at the rate of 1% per month on any such liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full.
(ii) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement, if the Company (X) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (Y) the Company determines it must amend or supplement the Registration Statement or (II) it has no further comments on the related Prospectus so that such post-effective amendment to the Registration Statement or Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus in light of the circumstances under which they were made, not misleading or (Z) 45 days after the initial filing of the post-effective amendment to the Registration Statement with the SEC.
(iii) The Company has experienced or is experiencing some other shall promptly (a) notify the Investors in writing of the existence of material non-public eventinformation giving rise to an Allowed Delay, including a pending transaction involving (b) advise the Company, the disclosure of which at such time, Investors in the good faith judgment of the Company, would adversely affect the Company; provided, however, in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant writing to cease all sales under the Registration Statement for a period that exceeds 120 calendar days (which need not be consecutive) in any 360-day period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such information or until the termination end of the condition described above, the Company shall provide prompt notice Allowed Delay and (c) use commercially reasonable efforts to holders whose Registrable Securities are included in the Registration Statement, and shall terminate an Allowed Delay as promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated herebypracticable.
Appears in 1 contract
Sources: Registration Rights Agreement (Primal Solutions Inc)